Civil Code

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Basic data
Title: Swiss civil code
Abbreviation: Civil Code
Type: Federal law
Scope: Switzerland
Legal matter: Private law
Systematic
legal collection (SR) :		 210
Original version from: December 10, 1907
Entry into force on: January 1, 1912
Last change by: AS 2016 689 (PDF) Federal Act on Continuing Education (WeBiG) of June 20, 2014
Effective date of the
last change:		 January 1, 2017
Please note the note on the applicable legal version.

The Swiss Civil Code , or ZGB for short ( French Code civil suisse (CC) , Italian Codice civile svizzero (CC) , Romansh Cudesch civil svizzer ) is the codification of the central parts of Swiss private law . Formally a part of the Civil Code (so-called code unique ), but the Code of Obligations (OR) is separated out as a separate code of law .

History and character

The Civil Code was developed by Eugen Huber on behalf of the Federal Council and completed in 1907. It came into force in 1912.

The strongest impact was found in the private law code for the canton of Zurich drafted by Johann Caspar Bluntschli , which had also been adopted in eastern Switzerland , but also features of the laws of western Switzerland and Ticino based on the Code Napoléon and those of the Austrian general civil law Laws of Bern, Lucerne, Solothurn and Aargau based on the legal code were taken into account.

From a legal historical point of view, the ZGB, like the German Civil Code, is a pandectistic codification .

title

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Title of the Swiss Civil Code

  • Introduction (Art. 1–10)
  • Part One : The Law of Persons (Art. 11-89)
    • First title: The natural persons
    • Second title: The legal persons
    • Third title: The collecting assets
  • Part Two : Family Law (Articles 90–456)
    • Third title: The marriage
    • Fourth title: Divorce and separation
    • Fifth Title: The Effect of Marriage in General
    • Sixth title: The property law of the spouses
    • Seventh title: The emergence of the child relationship
    • Eighth title: The effects of the child relationship
    • Ninth title: The family community
    • Tenth title: Your own precaution and measures by law
    • Title eleven: The administrative measures
    • Twelfth title: Organization
  • Third part: The law of inheritance (Art. 457-640)
    • Title thirteenth: the legal heirs
    • Title fourteenth: dispositions of death
    • Title fifteen: The opening of inheritance
    • Title sixteenth: The Effect of Inheritance
    • Title Seventeen: The Division of the Inheritance
  • Fourth part: Property law (Art. 641–977)
    • Title 18: General Provisions
    • Title nineteenth: real estate
    • Title twentieth: Fahrniseigentum
    • Title twenty-first: The easements and basic charges
    • Twenty-second title: The mortgage
    • Twenty-third title: The Fahrnispfand
    • Twenty-fourth title: Possession
    • Title twenty-fifth: The Land Register
  • Final title: Application and introductory provisions

Introductory Article of the Civil Code

1. Legal, custom and judicial law ( Art. 1 ZGB)
Art. 1 ZGB answers the question of how the judge has to arrive at the applicable legal rule in force. According to Art. 1 Para. 1 ZGB, the judge has to orient himself in a first step on the wording of a norm. However, this grammatical interpretation is not the only method of interpretation that the judge has to use to determine the content of a legislative thought. Rather, a method pluralism is available to him that he has to use on a case-by-case basis. To be mentioned are z. B. the interpretation from the legal context (systematic element), the purpose-oriented (teleological) or the historical interpretation.
If no rule can be found in the law for the specific situation in life, although this would be necessary, there is a legal loophole. This is to be distinguished in particular from the so-called “qualified silence” of the legislature. The latter occurs when the law contains an implied negative.
Based on the principle of separation of powers, the legislature would be responsible for filling the gaps. Implementing this without exception is impractical. Correspondingly, the ZGB has given the judge duties to fill gaps in Art. 1 Para. 2 ZGB. If there is no customary law , the importance of which is extremely low in Switzerland, the judge should fill the gap by forming a rule that he would establish as a legislator. As an aid he has tried and tested teaching and tradition, i.e. H. the findings from scientific disputes, and the court or Administrative practice to be taken into account.
2. Good faith and abuse of rights ( Art. 2 ZGB)
According to Art. 2 para. 1 of the Civil Code, each entity of good faith to act. The content of the norm is therefore fair, decent behavior in everyday legal life and the related protection of trust. So is z. B. the legal basis for the mutual duty of disclosure of parties involved in contract negotiations ( culpa in contrahendo ), anchored in Art. 2 ZGB. Likewise, liability for legitimate but disappointed trust within the framework of a special legal relationship ( trust liability ) is traced back to ZGB 2.
Article 2, Paragraph 2 of the Civil Code instructs the judge to refuse protection in the event of obvious abuse of a right. In application of this legal rule, the Federal Supreme Court has ruled that, as an exception, the legal independence of a legal person can be overlooked if this is asserted in an abusive manner in individual cases. In this case it is justifiable to take action from the controlled person to the controlling person.
3. Good faith - protection requirements ( Art. 3 ZGB)
The good faith is not generally protected. He experiences protection where the law links a legal consequence to the existence of good faith. The existence of good faith is presumed according to Art. 3 Para. 1 ZGB and can thus be refuted by proving bad faith. However, if a person of good faith does not recognize a legal deficiency because he has neglected the due attention, he will be treated like a bad faith person. In this sense, the Federal Court z. As a Occasionshändler denies bona fide rights protection, has bought a stolen Ferrari, without the associated papers to examine in an appropriate manner.
4. Equity decisions ( Art. 4 ZGB)
According to Art. 4 ZGB, the judge should, wherever the law uses formulations such as B. Assessment of the circumstances or important reasons chooses, decide on an equitable basis . The same is to be done if a legal institution requires it due to its nature. The interests in question must be recorded objectively and carefully weighed up in order to make an appropriate decision.
5. Federal private law - private law of the cantons ( Art. 5 ZGB)
The ZGB (including OR) regulates private law comprehensively and exclusively, subject to certain special areas (e.g. VVG). Any legal loopholes are to be closed from the Civil Code. A cantonal legislative authority exists only to the extent that it is expressly reserved in federal law. The central legal sources of the reserved cantonal law include the introductory laws to the Civil Code.
6. Federal private law - public law of the cantons ( Art. 6 ZGB)
Art. 6 ZGB points out that the cantons have independent legislative competence under public law in relation to federal private law . They must meet the following three cumulative conditions developed by the Federal Supreme Court: 1) As far as the federal legislature has made a final regulation, there is no scope for cantonal law. 2) The cantonal public law rule must be based on a justifiable public interest. 3) The standardization under public law must not run counter to the spirit and spirit of federal private law. It must not make the latter more difficult or even thwart it.
7. ZGB - OR ( Art. 7 ZGB)
The Code of Obligations (OR) was issued as the 5th part of the Civil Code. In other words, ZGB and OR belong together materially. Contrary to the wording of Art. 7 ZGB, the general provisions of the OR can generally apply analogously to other civil law relationships. The extent to which the provisions of the OR are to be adopted must be carefully checked in each individual case. So is z. B. the fundamental error (Art. 24 Para. 1 No. 4 OR) can be applied analogously to the inheritance contract . The provisions of other parts of the OR may also apply analogously. In addition, the provisions of the ZGB also apply to the OR.
8. Evidence (burden) ( Art. 8 ZGB)
A proper civil process is characterized by the fact that the parties present their allegations of fact in the main proceedings . Legally relevant factual allegations that are disputed by the other party must be proven. Art. 8 ZGB regulates who has to provide evidence or who has to bear the consequences of the lack of evidence. Subject to statutory exceptions, this is the party who derives rights from an alleged fact.
9. Evidential value of public documents - prohibition of cantonal rules of evidence ( Art. 9 ZGB)
Art. 9 ZGB provides for a basic protection of legitimate expectations with regard to public registers and documents provided for by federal private law . The law establishes the presumption that the public registers and documents reflect the correct content. This protection covers the content of the document to the extent that the notary can check it based on his or her own perception. It therefore does not extend to pure party claims. The presumption can also be rebutted by proving the inaccuracy of the content by any acceptable means. (Art. 9 Para. 2 ZGB).
10. Cantonal authority (expired)
Finally, Art. 10 of the Civil Code makes it clear that the cantons are not authorized to issue additional formal requirements for legal transactions that are subject to federal private law.

Reception in Turkey

The ZGB / OR was largely adopted ( received ) by Kemal Ataturk in Turkish civil law . However, this does not mean that the content of Swiss and Turkish civil law is identical in all areas today, because on the one hand not all sections have been adopted congruently and on the other hand the decrees of the two countries have diverged due to numerous revisions.

Reception in Liechtenstein

The property law of the ZGB (Art 641 to 977 ZGB) was largely adopted in Liechtenstein property law (SR) in 1923 ( reception ). The ABGB and the PGR as well as the Marriage Act contain further adoptions from the ZGB. The last changes to the Civil Code (especially with regard to land register law) were adopted in Liechtenstein on October 1, 2008. Inheritance and family law and the law of obligations in Liechtenstein are still largely influenced by the Austrian ABGB (Austrian ABGB). As a result of the membership of the Principality of Liechtenstein in the EEA , there is a further amendment by European legal acts (EU law, e.g. consumer protection, product liability, etc.) and the property law received is also influenced by this (see e.g. Art 392 up to 399 SR - Financial Collateral - Implementation of Directive 2002/47 / EC).

With the last partial amendment of the SR on October 1, 2008, the retention of title in rem in Liechtenstein was canceled due to its insignificance (still applies in the Civil Code). Further adjustments to the Liechtenstein legislature and the interaction with the ABGB and the PGR lead to different effects of identical provisions in the ZGB and SR.

See also

literature

current issues:

  • Swiss Civil Code of December 10, 1907 (as of January 1, 2012). (PDF; 899 kB; 348 pages) - Free text version (as a brochure: Swiss Civil Code of December 10, 1907 (as of January 1, 2011) BK / KAV 03.2011, Bundesdrucksache 210D, at admin.ch/dokumentation/publikation/) .
  • Sebastian Aeppli: ZGB text edition . Swiss civil code with subsidiary edicts and ordinances as well as federal court practice. 36th, revised edition, Orell Füssli, Zurich 2010, ISBN 978-3-280-07256-1 .
  • Peter Tuor , Bernhard Schnyder, Jörg Schmid, Alexandra Rumo-Jungo: The Swiss Civil Code . 13th edition. Schulthess, Zurich 2009, ISBN 978-3-7255-5574-1 .
  • Jolanta Kren Kostkiewicz, Peter Nobel , Ivo Schwander, Stephan Wolf (eds.): Swiss Civil Code ZGB. Comment. 2nd, revised and expanded edition. Orell Füssli, Zurich 2011, ISBN 978-3-280-07258-5 .

Cantonal private law:

  • Andreas Kley : Cantonal private law. A systematic presentation of the cantonal introductory legislation on federal private law using the example of the canton of St. Gallen and other cantons. St. Gallen 1992 (publications by the Swiss Institute for Administrative Courses at the University of St. Gallen), ISBN 3-908185-02-5 . rwi.uzh.ch (PDF)

Web links

Individual evidence

  1. ↑ Historisch-Biographisches Lexikon der Schweiz , article “Civil Code”.