220
`English is not an official language of the Swiss Confederation. This translation is
`provided for information purposes only and has no legal force.
`
`Federal Act
`on the Amendment
`of the Swiss Civil Code
`(Part Five: The Code of Obligations)
`
`of 30 March 1911 (Status as of 1 July 2015)
`Please note: this translation does not yet include the amendments of 1 1 2016
`Please note: this translation does not yet include the amendments of 1 1 2017
`
`
`The Federal Assembly of the Swiss Confederation,
`having considered the Dispatches of the Federal Council dated 3 March 1905 and
`1 June 19091
`decrees
`
`Division One: General Provisions
`Title One: Creation of Obligations
`Section One: Obligations arising by Contract
`
`A Conclusion of
`the contract
`I Mutual
`expression of
`intent
`1 In general
`
`2 Secondary
`terms
`
`Art. 1
`1 The conclusion of a contract requires a mutual expression of intent
`by the parties.
`2 The expression of intent may be express or implied.
`
`Art. 2
`1 Where the parties have agreed on all the essential terms, it is pre-
`sumed that the contract will be binding notwithstanding any reserva-
`tion on secondary terms.
`2 In the event of failure to reach agreement on such secondary terms,
`the court must determine them with due regard to the nature of the
`transaction.
`3 The foregoing is subject to the provisions governing the form of
`contracts.
`
`
`
` AS 27 317 and BS 2 199
`1
`BBl 1905 II 1, 1909 III 747, 1911 I 695
`
`1
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`
`II Offer and
`acceptance
`1 Offer subject
`to time limit
`
`2 Offer without
`time limit
`a In the parties’
`presence
`
`b In the parties’
`absence
`
`3 Implied
`acceptance
`
`3a Unsolicited
`goods
`
`Code of Obligations
`
`Art. 3
`1 A person who offers to enter into a contract with another person and
`sets a time limit for acceptance is bound by his offer until the time
`limit expires.
` 2 He is no longer bound if no acceptance has reached him on expiry of
`the time limit.
`
`Art. 4
`1 Where an offer is made in the offeree’s presence and no time limit
`for acceptance is set, it is no longer binding on the offeror unless the
`offeree accepts it immediately.
` 2 Contracts concluded by telephone are deemed to have been conclud-
`ed in the parties’ presence where they or their agents communicated in
`person.
`
`Art. 5
`1 Where an offer is made in the offeree’s absence and no time limit for
`acceptance is set, it remains binding on the offeror until such time as
`he might expect a reply sent duly and promptly to reach him.
`2 He may assume that his offer has been promptly received.
`3 Where an acceptance sent duly and promptly is late in reaching the
`offeror and he does not wish to be bound by his offer, he must imme-
`diately inform the offeree.
`
`Art. 6
`Where the particular nature of the transaction or the circumstances are
`such that express acceptance cannot reasonably be expected, the con-
`tract is deemed to have been concluded if the offer is not rejected
`within a reasonable time.
`
`Art. 6a2
`1 The sending of unsolicited goods does not constitute an offer.
`2 The recipient is not obliged to return or keep such goods.
`3 Where unsolicited goods have obviously been sent in error, the
`recipient must inform the sender.
`
`
`
`Inserted by No I of the Federal Act of 5 Oct. 1990, in force since 1 July 1991
`(AS 1991 846 848; BBl 1986 II 360).
`
`2
`
`2
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`
`4 Non-binding
`offer, an-
`nouncement of
`prices, display
`
`5 Publicly
`promised
`remuneration
`
`Art. 7
`1 An offeror is not bound by his offer if he has made express declara-
`tion to that effect or such a reservation arises from the circumstances
`or from the particular nature of the transaction.
` 2 The sending of tariffs, price lists and the like does not constitute an
`offer.
`3 By contrast, the display of merchandise with an indication of its price
`does generally constitute an offer.
`
`Art. 8
`1 A person who publicly promises remuneration or a reward in ex-
`change for the performance of an act must pay in accordance with his
`promise.
`2 If he withdraws his promise before performance has been made, he
`must reimburse any person incurring expenditure in good faith on
`account of the promise up to the maximum amount promised unless he
`can prove that such person could not have provided the performance in
`question.
`
`6 Withdrawal of
`offer and
`acceptance
`
`Art. 9
`1 An offer is deemed not to have been made if its withdrawal reaches
`the offeree before or at the same time as the offer itself or, where it
`arrives subsequently, if it is communicated to the offeree before he
`becomes aware of the offer.
` 2 The same applies to a withdrawal of an acceptance.
`
`III Entry into
`effect of a
`contract
`concluded in the
`parties’ absence
`
`Art. 10
`1 A contract concluded in the parties’ absence takes effect from the
`time acceptance is sent.
` 2 Where express acceptance is not required, the contract takes effect
`from the time the offer is received.
`
`B Form of
`contracts
`I Formal
`requirements and
`significance in
`general
`
`Art. 11
`1 The validity of a contract is not subject to compliance with any
`particular form unless a particular form is prescribed by law.
` 2 In the absence of any provision to the contrary on the significance
`and effect of formal requirements prescribed by law, the contract is
`valid only if such requirements are satisfied.
`
`3
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`
`Code of Obligations
`
`II Written form
`1 Form required
`by law
`a Scope
`
`Art. 12
`Where the law requires that a contract be done in writing, that provi-
`sion also applies to any amendment to the contract with the exception
`of supplementary collateral clauses that do not conflict with the origi-
`nal document.
`
`b Effect
`
`c Signature
`
`Art. 13
`1 A contract required by law to be in writing must be signed by all
`persons on whom it imposes obligations.
`2 ...3
`
`Art. 14
`1 Signatures must be appended by hand by the parties to the contract.
`2 A signature reproduced by mechanical means is recognised as suffi-
`cient only where such reproduction is customarily permitted, and in
`particular in the case of signatures on large numbers of issued securi-
`ties.
`2bis An authenticated electronic signature based on an authenticated
`certificate issued by a provider of certification services within the
`meaning of the Federal Act of 19 December 2003 on Electronic Signa-
`tures4 is deemed equivalent to a handwritten signature, subject to any
`statutory or contractual provision to the contrary.5
`3 The signature of a blind person is binding only if it has been duly
`certified or if it is proved that he was aware of the terms of the docu-
`ment at the time of signing.
`
`d Mark
`in lieu of
`signature
`
`Art. 15
`Subject to the provisions relating to bills of exchange, any person
`unable to sign may make a duly certified mark by hand or give a
`certified declaration in lieu of a signature.
`
`2 Form stipulat-
`ed by contract
`
`Art. 16
`1 Where the parties agree to make a contract subject to formal re-
`quirements not prescribed by law, it is presumed that the parties do not
`wish to assume obligations until such time as those requirements are
`satisfied.
`
`
`
`Repealed by Annex No 2 to the Federal Act of 19 Dec. 2003 on Electronic Signatures,
`with effect from 1 Jan. 2005 (SR 943.03).
`SR 943.03
`Inserted by Annex No 2 to the Federal Act of 19 Dec. 2003 on Electronic Signatures,
`in force since 1 Jan. 2005 (SR 943.03).
`
`3
`4
`5
`
`4
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` 2 Where the parties stipulate a written form without elaborating fur-
`ther, the provisions governing the written form as required by law
`apply to satisfaction of that requirement.
`
`C Cause of
`obligation
`
`Art. 17
`An acknowledgment of debt is valid even if it does not state the cause
`of the obligation.
`
`D Interpretation
`of contracts,
`simulation
`
`Art. 18
`1 When assessing the form and terms of a contract, the true and com-
`mon intention of the parties must be ascertained without dwelling on
`any inexact expressions or designations they may have used either in
`error or by way of disguising the true nature of the agreement.
`2 A debtor may not plead simulation as a defence against a third party
`who has become his creditor in reliance on a written acknowledgment
`of debt.
`
`E Terms of the
`contract
`I Definition of
`terms
`
`Art. 19
`1 The terms of a contract may be freely determined within the limits of
`the law.
` 2 Clauses that deviate from those prescribed by law are admissible
`only where the law does not prescribe mandatory forms of wording or
`where deviation from the legally prescribed terms would contravene
`public policy, morality or rights of personal privacy.
`
`II Nullity
`
`III Unfair
`advantage
`
`Art. 20
`1 A contract is void if its terms are impossible, unlawful or immoral.
`2 However, where the defect pertains only to certain terms of a con-
`tract, those terms alone are void unless there is cause to assume that
`the contract would not have been concluded without them.
`
`Art. 21
`1 Where there is a clear discrepancy between performance and consid-
`eration under a contract concluded as a result of one party’s exploita-
`tion of the other’s straitened circumstances, inexperience or thought-
`lessness, the injured party may declare within one year that he will not
`honour the contract and demand restitution of any performance already
`made.
`2 The one-year period commences on conclusion of the contract.
`
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`
`IV Agreement
`to conclude a
`contract
`
`F Defect in
`consent
`I Error
`1 Effect
`
`2 Cases of
`mistake
`
`Code of Obligations
`
`Art. 22
`1 Parties may reach a binding agreement to enter into a contract at a
`later date.
`2 Where in the interests of the parties the law makes the validity of a
`contract conditional on observance of a particular form, the same
`applies to the agreement to conclude a contract.
`
`Art. 23
`A party labouring under a fundamental error when entering into a
`contract is not bound by that contract.
`
`Art. 24
`1 An error is fundamental in the following cases in particular:
`1. where the party acting in error intended to conclude a contract
`different from that to which he consented;
`2. where the party acting in error has concluded a contract relat-
`ing to a subject matter other than the subject matter he intend-
`ed or, where the contract relates to a specific person, to a per-
`son other than the one he intended;
`3. where the party acting in error has promised to make a signifi-
`cantly greater performance or has accepted a promise of a sig-
`nificantly lesser consideration than he actually intended;
`4. where the error relates to specific facts which the party acting
`in error considered in good faith to be a necessary basis for the
`contract.
`2 However, where the error relates solely to the reason for concluding
`the contract, it is not fundamental.
`3 Calculation errors do not render a contract any less binding, but must
`be corrected.
`
`3 Invoking error
`contrary to good
`faith
`
`Art. 25
`1 A person may not invoke error in a manner contrary to good faith.
` 2 In particular, the party acting in error remains bound by the contract
`he intended to conclude, provided the other party accepts that contract.
`
`Art. 26
`1 A party acting in error and invoking that error to repudiate a contract
`is liable for any loss or damage arising from the nullity of the agree-
`ment where the error is attributable to his own negligence, unless the
`other party knew or should have known of the error.
`
`4 Error by
`negligence
`
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`
` 2 In the interests of equity, the court may award further damages to the
`injured party.
`
`5 Incorrect
`intermediation
`
`Art. 27
`Where an offer to enter into a contract or the acceptance of that offer
`has been incorrectly communicated by a messenger or other intermedi-
`ary, the provisions governing error apply mutatis mutandis.
`
`II Fraud
`
`III Duress
`1 Consent to
`contract
`
`2 Definition of
`duress
`
`IV Defect of
`consent negated
`by ratification of
`the contract
`
`Art. 28
`1 A party induced to enter into a contract by the fraud of the other
`party is not bound by it even if his error is not fundamental.
`2 A party who is the victim of fraud by a third party remains bound by
`the contract unless the other party knew or should have known of the
`fraud at the time the contract was concluded.
`
`Art. 29
`1 Where a party has entered into a contract under duress from the other
`party or a third party, he is not bound by that contract.
`2 Where the duress originates from a third party and the other party
`neither knew nor should have known of it, a party under duress who
`wishes to be released from the contract must pay compensation to the
`other party where equity so requires.
`
`Art. 30
`1 A party is under duress if, in the circumstances, he has good cause to
`believe that there is imminent and substantial risk to his own life, limb,
`reputation or property or to those of a person close to him.
` 2 The fear that another person might enforce a legitimate claim is
`taken into consideration only where the straitened circumstances of the
`party under duress have been exploited in order to extort excessive
`benefits from him.
`
`Art. 31
`1 Where the party acting under error, fraud or duress neither declares
`to the other party that he intends not to honour the contract nor seeks
`restitution for the performance made within one year, the contract is
`deemed to have been ratified.
`2 The one-year period runs from the time that the error or the fraud
`was discovered or from the time that the duress ended.
` 3 The ratification of a contract made voidable by duress or fraud does
`not automatically exclude the right to claim damages.
`
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`
`G Agency
`I With authori-
`sation
`1 In general
`a Effect of
`agency
`
`b Scope of
`authority
`
`2 Authority
`arising from a
`transaction
`a Restriction
`and revocation
`
`Code of Obligations
`
`Art. 32
`1 The rights and obligations arising from a contract made by an agent
`in the name of another person accrue to the person represented, and not
`to the agent.
` 2 Where the agent did not make himself known as such when making
`the contract, the rights and obligations arising therefrom accrue direct-
`ly to the person represented only if the other party must have inferred
`the agency relationship from the circumstances or did not care with
`whom the contract was made.
`3 Where this is not the case, the claim must be assigned or the debt
`assumed in accordance with the principles governing such measures.
`
`Art. 33
`1 Where authority to act on behalf of another stems from relationships
`established under public law, it is governed by the public law provi-
`sions of the Confederation or the cantons.
` 2 Where such authority is conferred by means of the transaction itself,
`its scope is determined by that transaction.
`3 Where a principal grants such authority to a third party and informs
`the latter thereof, the scope of the authority conferred on the third party
`is determined according to wording of the communication made to
`him.
`
`Art. 34
`1 A principal authorising another to act on his behalf by means of a
`transaction may restrict or revoke such authority at any time without
`prejudice to any rights acquired by those involved under existing legal
`relationships, such as an individual contract of employment, a partner-
`ship agreement or an agency agreement.6
`2 Any advance waiver of this right by the principal is void.
`3 Where the represented party has expressly or de facto announced the
`authority he has conferred, he may not invoke its total or partial revo-
`cation against a third party acting in good faith unless he has likewise
`announced such revocation.
`
`b Effect of
`death, incapaci-
`ty, etc
`
`Art. 35
`1 The authority conferred by means of a transaction is extinguished on
`the loss of capacity to act, bankruptcy, death, or declaration of pre-
`
`
`
`6 Amended by No II Art. 1 No 1 of the Federal Act of 25 June 1971, in force since 1 Jan.
`1972 (at the end of this Code, Final and Transitional Provisions of Title X).
`
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`
`sumed death of the principal or the agent, unless the contrary has been
`agreed or is implied by the nature of the transaction.7
`2 The same applies on the dissolution of a legal entity or a company or
`partnership entered in the commercial register.
` 3 The mutual personal rights of the parties are unaffected.
`
`c Return of the
`instrument
`conferring
`authority
`
`Art. 36
`1 Where an agent has been issued with an instrument setting out his
`authority, he must return it or deposit it with the court when that au-
`thority has ended.
`2 Where the principal or his legal successors have omitted to insist on
`the return of such instrument, they are liable to bona fide third parties
`for any loss or damage arising from that omission.
`
`d Time from
`which end of
`authority takes
`effect
`
`II Without
`authority
`1 Ratification
`
`2 Failure to
`ratify
`
`Art. 37
`1 Until such time as an agent becomes aware that his authority has
`ended, his actions continue to give rise to rights and obligations on the
`part of the principal or the latter’s legal successors as if the agent's
`authority still existed.
` 2 This does not apply in cases in which the third party is aware that the
`agent’s authority has ended.
`
`Art. 38
`1 Where a person without authority enters into a contract on behalf of a
`third party, rights and obligations do not accrue to the latter unless he
`ratifies the contract.
` 2 The other party has the right to request that the represented party
`ratify the contract within a reasonable time, failing which he is no
`longer bound by it.
`
`Art. 39
`1 Where ratification is expressly or implicitly refused, action may be
`brought against the person who acted as agent for compensation in
`respect of any damage caused by the extinction of the contract unless
`he can prove that the other party knew or should have known that he
`lacked the proper authority.
`2 Where the agent is at fault, the court may order him to pay further
`damages on grounds of equity.
` 3 In all cases, claims for unjust enrichment are reserved.
`
`
`
`7 Amended by Annex No 10 of the Federal Act of 19 Dec. 2008 (Adult Protection, Law of
`Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
`
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`
`Code of Obligations
`
`III Reservation
`of special
`provisions
`
`Art. 40
`The special provisions governing the authority of agents and govern-
`ing bodies of companies and partnerships and of registered and other
`authorised agents are unaffected.
`
`H Revocation in
`door-to-door
`sales and similar
`contracts
`I Scope of
`application
`
`II General
`principle
`
`Art. 40a8
`1 The following provisions apply to contracts relating to goods and
`services intended for the customer’s personal or family use where:
`a.
`the supplier of the goods or services acted in a professional or
`commercial capacity and
`the consideration from the buyer exceeds 100 francs.
`b.
`2 These provisions do not apply to insurance policies.
`3 In the event of significant change to the purchasing power of the
`national currency, the Federal Council shall adjust the sum indicated in
`para. 1 let. b. accordingly.
`
`Art. 40b9
`A customer may revoke his offer to enter into a contract or his ac-
`ceptance of such an offer if the transaction was proposed:
`a. 10 at his place of work, on residential premises or in their imme-
`diate vicinity;
`b. on public transport or on a public thoroughfare;
`c.
`during a promotional event held in connection with an excur-
`sion or similar event.
`
`III Exceptions
`
`Art. 40c11
`The customer has no right of revocation:
`a.
`if he expressly requested the contractual negotiations;
`b.
`if he declared his offer or acceptance at a stand at a market or
`trade fair.
`
`8
`
`9
`
`
`
`Inserted by No I of the Federal Act of 5 Oct. 1990, in force since 1 July 1991
`(AS 1991 846 848; BBl 1986 II 360).
`Inserted by No I of the Federal Act of 5 Oct. 1990, in force since 1 July 1991
`(AS 1991 846 848; BBl 1986 II 360).
`10 Amended by No I of the Federal Act of 18 June 1993, in force since 1 Jan. 1994
`(AS 1993 3120 3121; BBl 1993 I 757).
`11
`Inserted by No I of the Federal Act of 5 Oct. 1990 (AS 1991 846; BBl 1986 II 360).
`Amended by No I of the Federal Act of 18 June 1993, in force since 1 Jan. 1994
`(AS 1993 3120 3121; BBl 1993 I 757).
`
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`
`IV Duty to
`inform
`
`V Revocation
`1 Form and time
`limit
`
`2 Consequences
`
`Art. 40d12
`1 The supplier must inform the customer in writing of the latter’s right
`of revocation and of the form and time limit to be observed when
`exercising such right, and must provide his address.
`2 Such information must be dated and permit identification of the
`contract in question.
`3 The information must be furnished in such a manner that the custom-
`er is aware of it when he proposes or accepts the contract.
`
`Art. 40e13
`1 The customer must inform the supplier of his revocation in writing.
`2 The limitation period for revocation is seven days and commences as
`soon as the customer:
`a.
`has proposed or accepted the contract; and
`b. has become aware of the information stipulated in Art. 40d.
`3 The supplier bears the burden of proof regarding the time when the
`customer became aware of the information stipulated in Art. 40d.
`4 The time limit is observed if the notice of revocation is posted on the
`seventh day.
`
`Art. 40f14
`1 Where the customer has revoked the contract, the parties must pro-
`vide restitution for any performance already made.
`2 Where the customer has made use of the goods, he owes an appropri-
`ate rental payment to the supplier.
`3 Where the supplier has rendered services to him, the customer must
`reimburse the supplier for outlays and expenses incurred in accordance
`with the provisions governing agency (Art. 402).
`4 The customer does not owe the supplier any further compensation.
`
`Art. 40g15
`
`12
`
`13
`
`14
`
`15
`
`
`
`Inserted by No I of the Federal Act of 5 Oct. 1990 (AS 1991 846; BBl 1986 II 360).
`Amended by No I of the Federal Act of 18 June 1993, in force since 1 Jan. 1994
`(AS 1993 3120 3121; BBl 1993 I 757).
`Inserted by No I of the Federal Act of 5 October 1990 (AS 1991 846; BBl 1986 II 360).
`Amended by No I of the Federal Act of 18 June 1993, in force since 1 Jan. 1994
`(AS 1993 3120 3121; BBl 1993 I 757).
`Inserted by No I of the Federal Act of 5 Oct. 1990, in force since 1 July 1991
`(AS 1991 846 848; BBl 1986 II 360).
`Inserted by No I of the Federal Act of 5 Oct. 1990, in force since 1 July 1991
`(AS 1991 846 848; BBl 1986 II 360). Repealed by Annex No 5 to the Civil Jurisdiction
`Act of 24 March 2000 (SR 272).
`
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