Lease vs. Tenancy with Operational Rights in Restaurant Transfer

The dispute centered on whether the contract for the transfer of a restaurant-dancing establishment, including property and inventory but explicitly excluding "small inventory," constituted a lease (Miete) or a tenancy with operational rights (Pacht). The court reasoned that for a tenancy with operational rights, the agreement must transfer a usable right to derive fruits or earnings, often involving the transfer of the entire business, including its goodwill and business relationships. Conversely, a lease grants only the mere use of the object. The court found that because essential operational equipment (the excluded small inventory) was not transferred, and considering the fixed, indexed rent and security deposit, the agreement was properly classified as a lease agreement under the relevant articles of the Code of Obligations, despite clauses resembling operational responsibilities.