Code of Obligations (Switzerland)
|Title:||Federal law on the amendment to
the Swiss Civil Code
(Part Five: Code of Obligations)
|Short title:||Code of Obligations|
|Legal matter:||Private law|
legal collection (SR) :
|Original version from:||June 14, 1881|
|Entry into force on:||January 1, 1883|
|New announcement from:||March 3, 1905|
|Last revision from:||March 30, 1911|
|Entry into force of the
new version on:
|January 1, 1912|
|Last change by:||AS 2017 2077|
|Effective date of the
|April 1, 2017|
|Please note the note on the applicable legal version.|
The Swiss Code of Obligations , or OR ( French Droit des obligations (CO) , Italian Diritto delle obbligazioni (CO) , Romansh Dretg d'obligaziuns ), is the fifth part of the Swiss Civil Code (ZGB), but has been given its own article numbering and is longer in scope than the other four parts combined.
The law of obligations (from Latin obligatio 'obligation') is the law of obligations. In German and Austrian law, this part of private law is now known as the law of obligations . The Roman law designation of the law of obligations is still used in Swiss law today.
The OR contains materials related to the law of obligations, which, however, are supplemented in special laws. It regulates the contractual relationships between legal entities . It contains the legal basis for the exchange of assets , compensation in the event of damage ( ff.) And unjustified shifting of assets ( ff.).
The Code of Obligations consists of a general and a special part; the General part (AT) contains provisions that apply to all bonds, while the special section (BT; ff kind 184 OR..) individual contractual relationships especially regulates, such as purchase , exchange , lease , loan , loans , agency agreement , contract , Order , work contract , instruction and guarantee . Art. 530 ff. Contain company law , whereby here, too, further decrees (such as the commercial register ordinance ) must be observed. Securities law follows on from company law.
First Division: General Provisions
First title: The Origin of Bonds
The first articles contain general provisions governing the nature of bonds and their creation. In terms of the law, an obligation is an obligation. Most bonds arise from a legal transaction and by far the most important obligation is the contract. In order to conclude the contract, both parties must mutually agree to express their will. The expression of will can be express or tacit and in principle in any form.
The law regulates that offers, both in terms of scope and price, are binding during the entire offer period. If a shop window display is provided with price tags, the customer can therefore assume that he will get the goods at the stated price - subject to a significant error, see below.
Art. 11 ff. Regulates the form of the contracts. This is generally free, i. H. an oral or tacit agreement is sufficient. A special form is only necessary for the validity of contracts if this is explicitly required by law. In principle, all types of contracts are also permitted, with the exception of those whose content is illegal, is initially objectively impossible or is contrary to common decency.
From Art. 23 onwards, there may be a lack of will in the conclusion of the contract, in particular errors, deliberate deception and fear.
Art. 40a-40f regulate the special case of door-to-door sales , in which the customer can assert a right of withdrawal, which he is not entitled to in normal sales contracts.
There are basically three ways in which bonds can come about: through a contract, through an unlawful act and through unjust enrichment . In the case of an unlawful act, the law provides that someone is liable for damages if he damages another person through an unlawful act - for example damage to property or theft . So he has to compensate for the damage caused to someone. This is to be distinguished from the criminal prosecution possibly following from the same act , which can lead to a fine or to prison. Under civil law, it is irrelevant whether the damage was caused negligently or intentionally. However, there is only a right to compensation for the financial loss. Further claims, such as compensation for pain and suffering , are only provided in very special cases.
Unjust enrichment is a shift in assets without a legal basis. Usually the enriched has to return the enrichment to the deprived. Usually it is a mistake, like an accidental transfer.
Only those who can assert an act of self-defense or an emergency are not liable for compensation . In particular, the temporary loss of judgment, for example due to drunkenness, is no reason not to be liable for damages. A civil claim is independent of a criminal judgment in the same matter. The civil judge and the criminal judge can also come to different views on guilt and liability.
The following three forms of causal liability are also counted among the bonds from tort :
- Principal Liability (Art. 55)
- Animal owner liability (Art. 56)
- Works owner liability (Art. 58)
The peculiarity of causal liability is that the person liable is not directly at fault. Specifically, the business owner (entrepreneur) is liable for damage caused to third parties during the work; the animal owner for damage caused by his animal and the plant owner for damage that can be traced back to defects in the plant (≈ building). As an example it can be mentioned that the plant owner is liable for the damage if a passer-by is injured by an improperly attached roof tile. In the case of the principal's liability and the animal owner's liability, however, it must be said that it is a so-called mild causal liability. This is due to the fact that the liable party is given the opportunity to prove that the damage occurred despite exercising all care or would have occurred if all care had been taken. The liable party therefore has a “loophole”, something which, for example, the factory owner's liability does not allow.
Title Two: The Effect of Bonds
The next section defines how an obligation is properly fulfilled. First of all, it is determined that it is generally not necessary to provide the service personally, unless this has been agreed. Except money debt that the domicile of the creditor must be paid, ( "home delivery" z. B.) applies without special agreement that the supplier provide at his residence or business, the goods must.
If nothing special has been agreed, payment or delivery is due immediately. However, fulfillment can be set on any date, but Sundays or public holidays are generally not included, but it is expected that the contract will be fulfilled during business hours. A premature fulfillment of the contract is possible, unless it is evident from the type of contract that this would not be desired or would not make sense.
Article 91 ff. And especially 97 ff. Deal with the consequences of non-fulfillment of a contractual agreement, both from the perspective of the obligee (unjustified refusal of the offered service) and the debtor (goods are not delivered, the agreed work is not performed, Debt not paid). In any case, anyone who does not want to or cannot adhere to the agreement is liable to pay compensation to the contractual partner. He must therefore fully replace the income lost to the other. The obligee may, after a reasonable deadline for supplementary performance has also not been observed, place the same order with a third party, and the faulty party must assume the additional costs.
The last provisions of the second title deal with the entry of a third party, the contract at the expense of a third party and the contract for the benefit of a third party. In the case of the latter, it must be said that the teaching considers the term to be misleading and the term insurance contract is considered more suitable.
Third title: The extinction of bonds
This title deals with the extinction of bonds, with an emphasis on special cases. Normally, an obligation expires when the individual claims are met. However, other options are also conceivable. In particular, an obligation can expire by mutual agreement (Art. 115). The obligation also expires if fulfillment subsequently becomes impossible through no fault of the debtor (Art. 119). If they are similar, offsetting opposing claims is also possible (Art. 120 ff.). Art. 127 ff. Also regulates the limitation of claims. However, only the claims become statute-barred and are accordingly no longer legally enforceable; however, the obligation itself does not expire. The limitation period for claims is ten years, with exceptions.
Fourth title: Special conditions for bonds
The fourth title regulates special conditions such as solidarity debt and the contractual penalty . The former is about demands that have to be fulfilled by a group of people in solidarity. This means that everyone has to answer for the entire claim. The contractual penalty is an instrument to enforce compliance with the contract, which can be agreed in advance if there is mutual agreement. Should one side deviate from the contract, it has to pay an agreed sum (contractual penalty) regardless of any legal liability for damages.
Fifth Title: Assignment of Claims and Assumption of Debt
The fifth title deals with the assignment of claims ( assignment ) and the assumption of debt by third parties.
Second department: The individual contractual relationships
The second section deals with some important special cases of contracts.
Sixth title: Purchase and Exchange
Art. 184 ff. Deal with the special case of the sales contract . Among other things, it regulates that the delivery costs, unless otherwise agreed, are borne by the buyer. A substantial part of these articles, however, deals with the customer's warranty claims . The warranty, which is often incorrectly referred to as a guarantee , regulates the rights of the customer in the event of defects in the purchased item. The seller is liable for such defects, regardless of whether he was aware of them. The seller is liable for both legal and physical defects. A cancellation of this warranty is possible, but must not be malicious, i.e. if the seller was aware of the defect. In order to be able to assert a claim, the buyer must check the goods upon receipt and report any defects found immediately. If the buyer violates these obligations, he forfeits his warranty claims. However, there is an exception for so-called hidden defects, which cannot be detected even with careful examination. These must be reported immediately after discovery (so-called relative statute of limitations), whereby all claims are statute-barred two years after purchase (absolute statute of limitations). The only exceptions are cases of deliberate deception with regard to defects known to the seller. Due to the non-membership in the EU , the significantly longer limitation periods under EU law are not applicable in Switzerland.
The buyer can either demand a conversion (return of the purchase price and return of the goods) or a reduction (reduction of the purchase price) from the seller . If a slight decrease in value does not justify reversing the contract, the buyer is only entitled to the reduction. If the object of purchase is replaceable (generic goods), the buyer can also request a replacement delivery. Without a corresponding contractual agreement, the buyer does not have to accept an offer to repair the purchased item; The usual guarantee contracts when buying, especially electronic devices that provide for a repair, are therefore generally worse for the buyer than the statutory regulation, especially since the repair can take a considerable amount of time and the defect is not necessarily eliminated.
A special type of purchase contract is the acquisition of land. It is particularly important here that the contract must be publicly notarized , which is the strictest formal requirement for contracts. The notarization requirement also applies to preliminary contracts, provided that a price has been agreed. If, on the other hand, the price remains open, simple written form is sufficient for the preliminary contract. Contracts that do not conform to the legal form are fundamentally null and void (Art. 11). Another difference to the purchase of a vehicle is the statute of limitations, since the absolute statute of limitations is not one but five years.
Seventh title: The donation
Art. 239 defines the donation as a voluntary donation without consideration among the living, explicitly not including inheritance . In order to be able to make a gift, the person giving the gift must be able to act, i.e. in particular not patronized or underage, unless the person responsible agrees to the gift. A promise of donation is only valid if it has been made in writing (Art. 243).
Title eight: the rent
The great importance of rent in relation to home ownership, on the one hand, and the great importance of an apartment for the person (s) concerned, on the other, have prompted the legislature to protect the usually weaker party, the tenant, from reprisals and usury through detailed regulations . However, not all of the standards that protect the tenant apply to all types of premises. In particular, the rental of temporary holiday apartments, large single-family houses, luxury apartments and business premises are sometimes subject to less strict regulations (Art. 253a - 253b).
For example, the landlord may not terminate an apartment without notice even if there is a delay in payment. Conversely, the tenant may deposit his rent (i.e. pay into a blocked account instead of the landlord's account) if, for example, the landlord does not meet his contractual obligations to maintain the leased property.
Eighth title: The lease
The lease is a contractual relationship very similar to the rent. The first key difference relates to the property for which a contract can be concluded: a rent can only be concluded for physical objects, whereas a lease can also be concluded for rights. The logical conclusion from this would be that license agreements are also subject to the provisions of the lease. This used to be done by the Federal Supreme Court, but now the Federal Supreme Court takes the position that the license agreement is an Innominat contract . However, at least in part, the provisions of the lease still apply to the license agreement.
The second major difference concerns the use of the thing for which the contract was concluded. In the case of rent, the tenant is only entitled to use the property, while in the case of lease the lessee is also authorized to benefit from the property. In this context, the law speaks of the pulling of fruits and yields (also called civil fruits). In practice, differentiating between rent and lease can cause difficulties. For example, a lease agreement is concluded for a fully furnished and equipped office, while a lease agreement must be concluded for the same premises when they are completely empty. Another example can be the football pitch, for which a rental agreement must also be concluded, since the money is earned with the football game offered and not with the pitch itself. The relevant for the distinction between rent and lease is therefore not whether the matter is an economic one The goal is pursued, but whether a benefit can be drawn directly from the thing, or whether it can only serve to generate success.
Classic examples of the lease are in particular the fully equipped restaurant and the farm. For the latter, in addition to the provisions of the OR, those of the Federal Law on Agricultural Lease (Agricultural Lease Act, LPG) must be observed, which are much more detailed. If only cattle are leased, this contract is referred to as cattle sale (Art. 302 to 304 OR).
Ninth title: The loan
The loan is a bilateral legal transaction - the borrower must accept the loan in order for it to come about - and a bilateral contract - the borrower is obliged to return the item in perfect condition. The characteristic element of the loan is that it is free of charge. The duration can either be determined by contract; otherwise the loan ends as soon as the lender requests the item back. The borrower is prohibited from lending the thing on. If he violates this provision, he is also liable for damage caused by chance or force majeure, unless he can prove that the damage would have occurred even if it had been used in accordance with the contract (exculpation). Since the loan is legally a free rental, it is also not possible to borrow items that are reserved for lease. If a free lease is to be concluded, the law does not provide for a corresponding institute and an Innominat contract must be concluded, for which, however, the provisions of the lease largely apply. Alternatively, a lease with only a symbolic rent can be agreed.
The law treats this as a special case of borrowing loans . Contrary to popular belief, a loan is not just about borrowing money, but includes all leasing contracts for generic goods. As an example, in addition to the usual loans for money, the following can be mentioned: A lends his neighbor B five eggs and gives him the same number of eggs two days later. In contrast to all other leasing contracts - rent, lease and loan - the loan can be free of charge as well as against interest . The law basically assumes that the loan is free of charge. Contractual agreements and commercial transactions remain reserved. Another peculiarity of the loan is that the property is transferred to the borrower. In concrete terms, this means that the borrower does not have to return the same banknotes or eggs, but only goods of the same type, quality and quantity.
Title 10: The Employment Contract
This section is one of the most extensive of the Code of Obligations. It deals with the legal basis of the employment contract, so the relationship between employers who offer work, and that employers this for a wage demand. First, the individual employment contract - i.e. the employment contract with a single natural person - is dealt with, but there are also sections that restrict the permitted content of collective employment contracts or normal employment contracts . In labor law, many provisions are not optional, but are either mandatory or at least partially mandatory. This means that deviations can only be made in favor of the employees.
Eleventh title: The contract for work
Through the contract for work, the entrepreneur undertakes to produce a work and the purchaser to make a payment. (Art. 363) The contract for work comes into play when someone orders a specific workpiece, be it a component of a machine or a house, from an entrepreneur (natural or - more often - legal person). The entrepreneur is liable for the correct and timely execution of the work and must, without any other agreement, procure raw materials and tools himself. If the client provides materials or building ground, the contractor must inform the client immediately if the client shows deficiencies for the intended work. (Art. 364-366)
When accepting the work, the customer must check for any defects or have it checked. He may also call in an expert for this. The entrepreneur has reciprocal rights and may, if necessary, have a report drawn up by his own expert. The entrepreneur is liable for defects found (in the worst case judicially). He must correct the errors at his own expense or pay compensation. Except in the case of real estate that the entrepreneur has created on the basis of the client, the buyer can also withdraw from the contract in the event of significant defects and claim compensation.
The entrepreneur has to deliver the work for the previously agreed amount, regardless of his actual expenditure. A subsequent price increase is only possible if the circumstances that led to the increase in the entrepreneur's expense were not foreseeable.
Twelfth title: The publishing contract
By means of the publishing contract, the author of a literary or artistic work or his legal successor (publisher) undertakes to leave the work to a publisher for the purpose of publication, whereas the publisher undertakes to reproduce the work and put it on the market. (Art. 380) The publisher will need for the job by the author copyrights . If the contract is concluded with the legal successor of the author (typically his heir), he must prove that he owns the copyrights in question. (Art. 381)
The publisher may not concurrently conclude contracts with several publishers for the same work until the point in time when the publication of the first publisher is out of print and no further editions have been agreed. This does not apply to small excerpts from the work, for example in newspapers or magazines. (Art. 382)
The publisher may only have as many editions printed as agreed. If he is allowed to produce any number of editions, the publisher can insist that he has it reprinted when an edition is out of print. Otherwise the publisher may change the publisher. (Art. 383) If the publisher intends to publish a new edition, he must inform the author of this and enable him to introduce improvements or additions. (Art. 385)
The publisher may not add to, shorten or otherwise change the work without a corresponding agreement. (Art. 384) He must pay the publisher the agreed fee. (Art. 388)
Title thirteenth: the order
In the Swiss Code of Obligations, the order is a contractual relationship in which the contractor undertakes to carry out an activity for the client, whether for a fee or free of charge, whereby a relationship of trust exists between the two contractual parties. Examples are, in particular, contracts with doctors and lawyers. The Code of Obligations distinguishes between four other special contractual relationships in addition to the simple order, for which the provisions of the simple order apply on a subsidiary basis.
Title fourteenth: The management without an order
This section covers the situation where someone runs a business and takes on responsibilities on someone else's behalf without being specifically mandated to do so. These rules are to be applied, for example, if someone takes over a substitute without an explicit regulation, if the managing director unexpectedly cannot perform his task. The representative managing director must conduct the business as the correct managing director, according to his knowledge, would have done. He is liable for any negligence unless he can prove that the damage would have occurred without his involvement or that he tried to prevent further damage. The managing director is entitled to reimbursement of the costs that he incurred in good faith for the business, even if his management did not bring the desired success. (Art. 419ff)
Title fifteen: The Commission
The commission is an order for the sale of movable property or securities . The relevant regulations specify some rules for this particular order. In particular, the regulations on the order are combined with those of the sales contract, for example the right of the inspector to sell perishable goods as good as possible immediately if this is necessary or the obligation to report defective goods. (Art. 425ff)
Title sixteenth: the contract of carriage
"Freight carrier" is the OR term for someone who takes on the transport of goods for a fee. The freight contract is a contract according to which a certain amount of a good is to be sent to a certain destination. The rules of the contract of carriage are generally subject to those of the order. (Art. 440)
Anyone wishing to ship something must inform the carrier of the recipient's address, the content and weight of the package (s), the type of packaging and, if important, the value of the delivery. It should also determine the desired delivery time and the desired transport route (means of transport). Anyone who deliberately or negligently withholds essential points is liable for any resulting damage (Art. 441) The customer is also liable for damage resulting from inadequate or inadequate packaging, unless the outside of the item to be dispatched indicates that the packaging is defective. (Art. 442)
If the freight cannot be delivered, the carrier must inform the sender of this. If the latter does not give instructions about the use of the goods, the carrier can have the goods sold. (Art. 444)
During the transport, the carrier is liable for loss of or damage to the goods and also for late delivery. The recipient must report transport damage, including those that are not externally visible, to the carrier within eight days at the latest.
Title seventeen: Prokura and other powers of attorney
The power of attorney is a power of attorney to conduct business in the name of the managing director and to be able to conclude contracts and enter into liabilities in his name. The name of the authorized signatory must be entered in the commercial register (Art. 458). In contrast, an authorized representative is someone who only takes over the business of the managing director to a limited extent, for example as a department head.
The power of attorney can be designed as a collective power of attorney, i.e. several persons can only act on behalf of the principal with a joint signature (Art. 460). The power of attorney or power of attorney does not end with the death of the principal, but can be revoked at any time.
Title Eighteenth: The Instruction
The instruction is an authorization to deliver money, securities or similar items to a third party (Art. 466). With the modernization of the payment system, this way of fulfilling a liability became almost meaningless in the first half of the 20th century. Electronic payment has made it practically superfluous.
Title nineteenth: the deposit agreement
This is a security contract with which a party undertakes to keep a movable property safe. The contract can be free of charge as well as paid. There are special rules for the commercial warehouse business and innkeepers.
Title twentieth: The guarantee
By means of the guarantee contract, the surety undertakes to stand up for the debtor's debts to a third party and to settle them if the debtor himself does not bear the debt. A guarantee document must be drawn up in writing and generally even publicly notarized , unless the liability amount is less than CHF 2,000 or the creditor is the state or the federal government.
Title twenty-first: Game and Bet
This section contains instructions for gambling and wagering . In principle, no claims arise from gaming and betting in Switzerland, so they are neither enforceable nor enforceable (Art. 513ff). Also, no obligation arises from bonds that were obviously taken out for the purpose of the game. Lottery prizes can only be claimed if the relevant lottery has been approved by the competent authority. Only through the adopted in 2000 Gambling Act were casinos legal again in Switzerland. Claims from (and against) approved casinos are enforceable.
Title twenty-second: The Annuity Contract and the Pledge
An annuity is an annuity, i.e. a recurring payment to a debtor that is usually concluded for life. The debtor undertakes to provide the annuity creditor with a normally half-yearly payment.
Third division: the trading companies and the cooperative
The individual sections are not listed, see.
- First Division: General Provisions
- First title: The creation of bonds (Art. 1-67 OR)
- Title two: The effect of the bonds (Art. 68-113 OR)
- Third title: The extinction of bonds (Art. 114-142 OR)
- Fourth title: Special conditions for bonds (Art. 143-163 OR)
- Fifth title: The assignment of claims and the assumption of debt (Art. 164-183 OR)
- Second department: The individual contractual relationships
- Sixth title: Purchase and exchange (Art. 184-238 OR)
- Seventh title: The donation (Art. 239-252 OR)
- Eighth title: The rent (Art. 253-274g OR)
- Title eight to : The lease (Art. 275-304 OR)
- Ninth title: The loan (Art. 305-318 OR)
- Tenth title: The employment contract (Art. 319-362 OR)
- Eleventh title: The contract for work (Art. 363-379 OR)
- Twelfth title: The publishing contract (Art. 380-393 OR)
- Title thirteenth: The order (Art. 394-418v OR)
- Title fourteenth: The management without a mandate (Art. 419-424 OR)
- Fifteenth title: The Commission (Art. 425-439 OR)
- Sixteenth title: The contract of carriage (Art. 440-457 OR)
- Seventeenth title: The procuration and other powers of attorney (Art. 458-465 OR)
- Eighteenth title: The instruction (Art. 466-471 OR)
- Title nineteenth: The deposit agreement (Art. 472-491 OR)
- Title twentieth: The guarantee (Art. 492-512 OR)
- Twenty-first title: Games and bets (Art. 513-515a OR)
- Twenty-second title: The annuity contract and the mortgage (Art. 516-529 OR)
- Twenty-third title: The simple society (Art. 530-551 OR)
- Third division: the trading companies and the cooperative
- Twenty-fourth title: The general partnership (Art. 552-593 OR)
- Twenty-fifth title: The limited partnership (Art. 594-619 OR)
- Twenty-sixth title: The stock corporation (Art. 620-763 OR)
- Twenty-seventh title: The limited partnership (Art. 764-771 OR)
- Twenty-eighth title: The company with limited liability (Art. 772-827 OR)
- Twenty-ninth title: The cooperative (Art. 828-926 OR)
- Fourth Department: Commercial Register, Business Companies and Commercial Accounts
- Thirtieth title: The Commercial Register (Art. 927-943 OR)
- Thirty-first title: The business firms (Art. 944-956 OR)
- Thirty-second title: Commercial accounting (Art. 957-964 OR)
- Fifth section: The securities
- Thirty-third title: The registered, bearer and order papers (Art. 965-1155 OR)
- Thirty-fourth title: bonds (Art. 1156–1186 OR)
- Text of the Code of Obligations of March 30, 1911 in the Systematic Collection of Federal Law
- Lukas Gschwend: Code of Obligations (OR). In: Historical Lexicon of Switzerland .
- Eugen Bucher: Swiss Code of Obligations, General Part 2nd Edition. 1988
- Wolfgang Ernst: Introduction to private law on a historical and comparative basis University of Zurich, 2009 (slides)
- A tacit acceptance of a contract applies, for example, to taking goods from the display in a shop. There is no need to tell the seller that you want to buy this.
- The error must be essential, i.e. In other words, one of the parties must be able to assert that they wanted to conclude a significantly different contract.
- Fraud, overreaching.
- This blackmail, for example.
- The satisfaction is explicitly only provided for the killing of a person (Art. 47) or in the event of a violation of personality (Art. 49).
- The obligation to fulfill the contract personally is the rule for employment contracts, for example.
- Anyone who orders a wedding cake from the bakery will hardly enjoy it if it is delivered two weeks early.
- The "appropriate" depends on the nature of the contract. An order to repaint a room is certainly less time-critical than the date for the delivery of a wedding cake. The deadlines may differ accordingly.
- The precondition for a warranty for a used car that has been presented to the buyer and found to be in order is therefore generally permissible, unless the seller knowingly withholds an invisible defect.
- Similar to the definition of the ability to act itself, the ability to make judgments and the scope of the gift are also important here.
- However, this does not exclude the possibility that the publisher will not enter into the contract with the author at all if the author does not change the work in a certain way.
- The sender may therefore e.g. B. do not hide the fact that the delivery is sensitive to vibrations or perishable quickly.
- David Schneeberger: Fahrniskauf. Retrieved November 11, 2014 .