The grandmother gifted the painting to her niece, and she sold the house to her grandson under a reservation clause.
C was the owner of a house with art works, including a painting by the Swiss artist Carigiet. She gifted her niece B this painting by a written contract dated 20 January 2006. The painting remained in the house, as the donor retained the usufruct of the painting until she moved out of the house.
One week later, C sold her house to her grandson A. According to the publicly notarized contract of January 27, 2006, the furnishings were also part of the purchase contract, unless they had been donated to third parties or bequeathed. At the same time, the parties established a life interest in favor of the seller so that C could continue living in the house.
In order to bequeath all furniture, pictures, carpets and inventory to A, C wrote a handwritten amendment to the will on September 3, 2009.
C moved into the nursing home on March 8, 2017, and died on December 13, 2017.
Replevin of the painting
In 2019, niece B sued A for surrender of the Carigiet’s painting. The dispute was whether A was a bona fide purchaser: Could he acquired the picture in good faith when his grandmother C sold him the house with the furnishings?
Evidence when invoking good faith
The Federal Supreme Court held that according to Art. 3 par. 2 Swiss Civil Code (CC), a person invoking good faith has to prove that he had been attentive to the circumstances (see Federal Supreme Court decision 5A_71/2022 of September 14, 2022, Consid. 3.3.2.).
Obligation based on a contractual reservation clause?
The reservation clause in the notarized deed had obliged A to inquire about any donations or legacies: A should have checked with the grandmother respectively the seller, in particular about dispositions that had already been made. The grandmother had probably not concealed the donation of the painting, which had been made only one week before the conclusion of the contract. Even after the contract formation, the vendor had been able to freely dispose of the furnishings in the future, which A had agreed to. A, however, did not provide any evidence at all of investigations regarding the ownership of the painting. Consequently, A could not successfully claim a bona fide transaction either at the time of contracting or later when taking possession of the house. A bona fide purchase of the painting by Carigiet was excluded (see Federal Supreme Court judgment 5A_71/2022 of September 14, 2022, Consid. 3.3.3.).
Since A had not become the owner of the Carigiet’s painting, B had a claim for restitution.