Introduction to Swiss Law Block 2: Private Law Law of Obligations Friday, September 28 th 2018, KOL-G-221 Dr. Tina Huber-Purtschert, attorney at Law [email protected] Introduction to Swiss Law Overview I. Objectives II. Literature III. Translations IV. Useful Links V. Code of Obligations: Structure VI. Swiss Contract Law VII. Swiss Company Law VIII. Did we meet the Objectives? Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 2 Introduction to Swiss Law Objectives beeing able to find the law text and secondary literature getting to know the structure and functioning of the Swiss code of obligations beeing able to enumerate general principles of swiss contract and company law and beeing able to find the respective provisions in the law text starting reflexions about the similarities and differences to the jurisdiction of the respective „homecountry“ Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 3 Introduction to Swiss Law Literature Law of Obligations ° HUBER -PURTSCHERT TINA , Law of Obligations, in: Marc Thommen (ed.), Introduction to Swiss Law, Berlin/Berne 2018, pp. 305 Contract and Tort Law ° BUCHER EUGEN , The Law of Contracts (Chapter 8), in: François Dessemontet and Tuğrul Ansay (eds.), Introduction to Swiss Law, 3 rd ed., The Hague 2004, pp. 107. ° TERCIER PIERRE / D REYER DOMINIQUE , Torts (Chapter 9), in: François Dessemontet and Tuğrul Ansay (eds.), Introduction to Swiss Law, 3 rd ed., The Hague 2004, pp. 145. Company Law ° HANDSCHIN LUKAS , Swiss Company Law, 2nd ed., Zurich/St. Gall 2015. ° LENGAUER DANIEL /SCHAAD MARTIN /A MSTUTZ THERESE (eds.), Company Law in Switzerland, Zurich/Basel/Geneva 2009. ° DÖRIG ADRIAN , Switzerland, in: Frank Dornseifer (ed.), Corporate Business Forms in Europe, A Compendium of Public and Private Limited Companies in Europe, Berne 2005, pp. 809. ° DESSEMONTET , F RANÇOIS , Corporations and Partnerships (I. of Chapter 10), in: François Dessemontet and Tuğrul Ansay (eds.), Introduction to Swiss Law, 3 rd ed., The Hague 2004, pp. 165. Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 4 Introduction to Swiss Law Translations English Translations of the Swiss Code of Obligations ° http://www.admin.ch/ch/e/rs/2/220.en.pdf. ° Federal Office of Justice (ed.): Swiss law (Civil Code, Code of Obligations, Private International Law: Arbitration), Berne 2012. ° Swiss-American Chamber of Commerce (ed.): Swiss Code of Obligations I, Contract Law (Articles 1-551), 6 th ed., Zurich 2011. ° Swiss-American Chamber of Commerce (ed.): Swiss Code of Obligations II, Company Law (Articles 552-964), 5 th ed., Zurich 2010. An English version of each article of the code of obligations can also be found in: • Amstutz Marc et al (eds.): Handkommentar zum Schweizer Privatrecht, 3 rd ed., 10 volumes, Zurich/Basel/Geneva 2016. Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 5 Introduction to Swiss Law Useful Links Federal Acts and Ordinances: www.admin.ch/bundesrecht or www.bundesrecht.admin.ch (choose EN) The Jurisdiction of the Swiss Federal Tribunal: www.bger.ch Federal and Cantonal Jurisdiction, Literature (especially Law Journals and Commentaries): www.swisslex.ch ; www.legalis.ch Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 6 Introduction to Swiss Law Code of Obligations: Structure (I/II) The Swiss Code of Obligations ° federal act on the amendment of the Swiss Civil Code (part five: Code of Obligations) ° No. 220 (classified compilation of federal legislation) ° in force since January 1th , 1912 Contract and Tort Law Company Law (including Law on Securities) Division One Division Two Division Three Division Four Division Five General Types of Commercial The Commercial Negotiable Provisions Contractual Enterprises and Register, Busi- Securities (arts. 1-183 CO) Relationship the Cooperative ness Names (arts. 965-1186 CO) (arts. 184-551 CO) (arts. 552-926 CO) and Commercial Accounting (arts. 927-964 CO) Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 7 Introduction to Swiss Law Code of Obligations: Structure (II/II) Other federal acts (ordinances) beside the Swiss Code of Obligations (selection): Contract and Tort Law Company Law ° Convention of International Sale of ° Merger Act (No. 221.301) Goods (No. 0.221.211.1), «CISG» ° Ordinance on the Commercial ° Consumer Credits Act Register (No. 221.411) (No. 221.214.1) ° Fair Trade Act (No. 241) ° Product Liability Act ° Cartel Act (No. 251) (No. 221.112.944) ° Banking Act (No. 952.0) ° Package Travel Act (No. 944.3) ° Stock Exchange Act (No. 954.1) ° Collective Investement Schemes Act (No. 951.31) Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 8 Swiss Contract and Tort Law Overview Principles a) Conclusion of a contract b) Interpretation of a contract c) Defects in the conclusion of a contract d) Defects in consent e) Unfair advantage f) Claims according to the general provisions of the CO g) Quasi-contractual claims h) Time limits i) Types of contractual relationship j) Innominate contracts Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 9 Swiss Contract and Tort Law Principles Freedom of contract FreedomN ° to conclude or not conclude a contract ° to choose the contractual partner ° to establish t e contracts content ° of formality ° to terminate or alter a contract Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 10 Swiss Contract and Tort Law a9 1onclusion of a contract 8I/II9 Conclusion of the contract, art. 1 CO L1The conclusion of a contract requires a mutual expression of intent by the parties. M L2The expression of intent may be express or implied. M e.g. contract of sales, art. 185 1O: Consensus ° Basic points t at ave to be ° parties must consent in every determined: t e price of the good basic point of t e contract and t e good itself. (essentialia negotii) ° Less important points may be e.g.: ° less important points may be t e place or t e time of fulfillment of left open t e contract Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 11 Swiss Contract and Tort Law a9 1onclusion of a contract 8II/II9 offer A B acceptance offer counter offer = modified acceptance A B acceptance Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 12 Swiss Contract and Tort Law b9 Interpretation of a contract Principle of will: Subjective Interpretation natural consensus «1[$% the true and common 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.& art. 18 para. 1 1O Principle of good faith: Objective Interpretation normative consensus Acting in good faith, A declaration of intention is understood art. 2 11 81ivil 1ode9 t e way t e ot er party of t e contract could and did in good fait understand it. L1 Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations. M Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 13 Swiss Contract and Tort Law c9 Defects in t e conclusion of a contract impossibility unlawfulness, non-respect orf the required form immorality art. 20 para. 1 1O art. 20 para. 1 1O art. 11 1O Nullity, art. 20 CO Formal requirements and significance in general, art. 11 CO L1 A contract is void if ist terms ar impossible, unlawful or immoral .M L1 The validity of a contract is not subject to compliance with any L )owever, where the defect pertains particular form unless a particular form only to certain terms of a contract, those is prescribed by law .M terms alone are void unless there is cause to assume that the contract L In the absence of a any provision to would not have been concluded without the contrary on the significance and them.M effect of formal requirements prescribed by law, the contract is valid only if such requirements are satisfied.M Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 14 Swiss Contract and Tort Law d9 Defects in consent 8I/II9 Error Fraud Duress arts. 23 et seOO. 1O art. 28 1O arts. 2C et seO. 1O art. 23 CO, error art. 28 CO, fraud art. 29 CO, consent to contract LA party labouring under fundamental L1 A party induced to L1 1here a party has entered into error when entering into a contract is not enter into a contract by a contract under duress from the bound by that contract.M the fraud of the other other party or a third party, he is party is not bound by it not bound by that contract .M art. 24 CO, cases of mistake even if his error is not fundamental .M art. 30 CO, definition of duress L1 An error is fundamental in the following cases in particular, L1 A party is under duress if, in 1. where the party acting in error intended the circumstances, he has good to conclude a contract different from that to cause to believe that there is which he consented- imminent and substantial ris2 to ..3. ... his own life, limb, reputation or 0. where the error relates to specific facts property or to those of a person which the party acting in error sonsidered close to him. in good faith to be a necessary basis for ...M the contract. ... 3...& Introduction to Swiss Law, Block 2: Private Law, Law of Obligations 15 Swiss Contract and Tort Law d9 Defects in consent 8I/III9 Effect of an error, fraud or duress: Defect of consent negated by ratification of the contract, art.