Liability law (Switzerland)
The liability law is a branch of the Code of Obligations and civil law. It regulates the replacement of damage caused to other people by private individuals . If the state is the perpetrator, the rules on state liability of the community concerned (the federal government and the cantons ) apply . The basics of Swiss liability law are regulated in Art. 41–61 OR (Code of Obligations, SR 220) . Also to be mentioned are Art. 97 ff. OR for contractual liability law (for liability between contractual partners) as well as the numerous provisions in other laws , particularly those relating to causal liability , such as the SVG ( Road Traffic Act , SR 741.01) and the KHG ( Nuclear Energy Liability Act , SR 732.44).
Basics
Swiss liability law is influenced by German law in a number of important points. This is already clear in the case law on Art. 41 OR, which is kept quite short (compared to the German § 823 BGB ): Although the wording of the law also allows other interpretations , the case law assumes a similar conception of illegality as it is in German law exists.
As is usual in European legal systems, liability law is primarily of equalizing importance. Anyone who harms another should at least equip him financially as he would be if the harm had never occurred. There is no retaliatory function - this is taken over by criminal law , if at all . Can on the other hand someone who " spiritual injustice " has learned may be entitled to satisfaction assert without having to a financial loss needs to prove. However, this also serves only to compensate for the disadvantage that the injured party has suffered, never to punish the injured party.
Types of compensation claims
Tort (non-contractual) and contractual claims
Swiss law differentiates between claims that arise from an unlawful act (including a civil offense) and those that arise from a contract within the meaning of Art. 1 ff. OR. This distinction is particularly important for the statute of limitations , the burden of proof for fault , liability for third parties and liability for pure financial loss.
Fault and causal liability
Like other legal systems, the Swiss one also distinguishes between fault and causal liability. Fault liability (primarily regulated by Art. 41 OR) are, as the name implies, linked to fault causing the damage, while causal adhesions are already fulfilled by the presence of certain matters. This may involve, for example, that a loss by a vehicle from injuring held , is created or was caused by a person as a caregiver must apply the tortfeasor.
Causal liability is further subdivided into
- simple causal liability, e.g. B.
- Liability of persons incapable of judgment, Art. 54 OR Para. 2
- Principal liability, Art. 55 OR
- Animal owner liability, Art. 56 OR
- Works owner liability, Art. 58 OR
- Liability of landlords, Art. 679 ZGB
- Liability of the head of the family, Art. 333 ZGB
-
Strict liability , z. B.
- Liability of the motor vehicle owner, Art. 58 SVG
- State and civil servant liability
- Product liability
Constituent elements
In order for a claim for damages to exist, there must be four basic elements:
- a damage , in the sense of a capacity difference
- an illegality (or, in the case of contractual liability, a breach of contract)
- a fault of the injuring party (or a fact that replaces this requirement in the case of causal liability)
- a causal relationship , a natural and adequate one.
See also
literature
- Karl Oftinger, Emil W. Stark: Swiss Liability Law , 4 volumes, Zurich, 1987–1995.
- Heinz Rey: Non-contractual liability law , Zurich, 2008.
