Order (Switzerland)
The order is a contractual relationship in the Swiss Code of Obligations . The contractor undertakes to carry out an activity for the client for a fee or free of charge, whereby a relationship of trust exists between the two contracting parties. Although it has the same name, the mandate in Swiss law corresponds less to the mandate of German law and more to the service contract of German law.
Legal system
The mandate is regulated in the Code of Obligations of 1911 - which represents the 5th part of the Civil Code - but was already contained in the Code of Obligations of 1881 in a similar way. Specifically, the provisions can be found in the 13th title in the second section, which is usually also referred to as a special part of the OR, as it regulates special contractual relationships. The 13th title is divided into the provisions on the simple order as well as on some special variants of the order.
The simple job
By accepting an order, the agent undertakes to take care of the legal or factual business or services assigned to him in accordance with the contract (Art. 394, Paragraph 1). According to the wording of Art. 394 (2), all contracts for work that cannot be assigned to any other group are deemed to be an order. However, the case law does not interpret this article literally and also allows Innominat contracts for work performance. To date, however, it has not been finally decided whether only mixed contracts or also contracts sui generis are permissible. Since the case law does not adopt the final negative definition of the order in Art. 394 (2), a positive definition of the order is necessary. The Federal Supreme Court therefore assumes that the characterizing element of the contract is the special relationship of trust between the parties. The usual contents of contractual relationships are in particular the services of doctors and lawyers as well as the contract for construction management. It is irrelevant whether the order also includes subordinate work-related elements, e.g. B. the manufacture of a crown by a dentist contains.
The client has to pay for the service if this has been agreed or is customary. A contract for an order is deemed to have been concluded if the agent does not immediately reject it and he does such work commercially, has been used by an authority or has recommended himself for it (e.g. if he has advertised his company). With the assignment, the client also transfers the associated rights to the agent, such as the right to make the necessary expenses on behalf of the client. The agent is liable for the faithful and careful execution of the order, conversely, the client is liable for the expenses of the agent, provided that he has made these in the correct execution of the order. However, the success of the work carried out is not owed - provided that the work has been done carefully. The order is therefore the normal contract for z. B. To oblige doctors or lawyers. Due to the nature of their work, they cannot guarantee the success of their efforts.
In addition to the specialty that the success of the work to be carried out is not owed, the order is distinguished from the other contracts for work services primarily through the fact that the contractual relationship can be revoked at any time. This regulation listed in Art. 404 (1) is regarded by the Federal Supreme Court as mandatory and is justified by the special relationship of trust between the parties. This regulation directly or indirectly contradicting contractual provisions, e.g. B. Restrictions on termination or contractual penalties are accordingly void. According to Art. 404 (2), the terminating party owes compensation if the termination occurs at an inopportune time (e.g. shortly before the order is completed).
The contract either expires if, in accordance with the nature of the business, it is fulfilled or one of the partners dies, goes bankrupt or is unable to act. If it is in the interest of the client, the order is transferred to the heirs or representatives of the agent.
Special forms
Order for marriage or partnership mediation
This section was added to the Code of Obligations in 1998 and has been in force since January 1, 2000 (AS 1999 1118; BBl 1996 I 1). Anyone who accepts an order for marriage or partnership mediation undertakes to find suitable persons for the marriage or a permanent partnership for the client in return for remuneration (Art 406a). The section supplements the section on the general order for this special case.
The special provisions of this type of contract cover roughly two topics: migration and form . If the mediator allows people from abroad to enter the country in order to mediate them, he must on the one hand have a permit and on the other hand have financially secured their return journey. This is to prevent people from entering the country only for marriages of convenience or other entry regulations being circumvented. The agency contract must be drawn up in writing and a. inform the client about his free right of withdrawal within seven days (Art 406d 5). If this passage is missing, it may still allow a withdrawal from the contract years later. The lack of prescribed parts of the contract could also result in the nullity of the contract.
The letter of credit and the credit order
This section deals with so-called letters of credit and the rights and obligations associated with them and the credit order .
The brokerage contract
As a broker (or broker) refers to someone who is trying to mediate on behalf of another contracts. He is looking for customers for the client and arranges them without being an employee of the client himself. The client must pay him compensation when a contract is concluded. Brokers are particularly common in insurance and banking (see Insurance Brokers and Stock Brokers ).
The agency contract
An agent is someone who takes on an assignment to broker or conclude business for his client (Art. 418a). The agent is obliged to maintain secrecy vis-à-vis third parties about the client's trade secrets known to him, but without any other agreement he may also work for third parties. A non-competition clause can be agreed.
The agent is entitled to the agreed or customary placement or conclusion commission. If the agent is commissioned to recruit customers in a certain area, it is assumed that he works exclusively for the client in this area. He is also entitled to the commission if the client has concluded a transaction in the agent's territory without his involvement (Art. 418f - 418g).
Articles 418m - 418o contain provisions similar to those of labor law. They are intended to prevent the agent from being excessively disadvantaged in relation to his client. Thus, the client has to partially pay for through no fault loss of earnings (illness, military service, etc.) of the agent working exclusively for him and may not fraudulently prevent him from fulfilling his contract, for example by withholding important information. These conditions cannot be excluded. Unless otherwise agreed, he must also reimburse the agent's (travel) expenses.
Legal comparison
Based on Roman law, orders in various legal systems, for example the German and Austrian, are viewed as an exclusively free request to perform an action. Accordingly, the importance of the contract in these legal systems is relatively minor. Since the contract in Switzerland, on the other hand, comprises a very broad spectrum of paid and unpaid contract variations, its importance is many times greater. One consequence of the fact that it derives from the free order under Roman law is that the order can be terminated at any time under Swiss law. This regulation was often criticized in teaching as unsuitable for paid contracts.