Swiss Code of Obligations
The Swiss Code of Obligations (SR/RS 22, German: Obligationenrecht; French: Code des obligations; Italian: Diritto delle obbligazioni; Romansh: Dretg d'obligaziuns) is a portion of the second part (SR/RS 2) of the internal Swiss law ("Private law - Administration of civil justice - Enforcement") that regulates contract law and corporations (Aktiengesellschaft). It was first adopted in 1911 (effective since 1 January 1912).
|Swiss Code of Obligations|
|Ratified||30 March 1911|
|Date effective||1 January 1912 (current version as of 1 April 2020)|
|Author(s)||Walther Munzinger, Heinrich Fick|
|Purpose||Regulates contract law and corporations|
In 1864, the Bernese jurist Walther Munzinger was assigned a task to draft a unified code of obligations. This early project came to nothing, as it was not yet considered to fall under federal jurisdiction. Four years later, the Federal Council agreed to the unification of the law of obligations, and Munzinger was put in charge of thee effort. After Munzinger's death in 1873, the project fell to Heinrich Fick.
The earliest version of the Code of Obligations was adopted in 1881, and came into force on 1 January 1883. Munzinger, the main drafter of the 1881 Code, was influenced by the Dresdner Draft and the work of Johann Caspar Bluntschli.
The current Code of Obligations was adopted on 30 March 1911, becoming the fifth book of the Swiss Civil Code. Changes enacted in 1911 are relatively minor, mostly reflecting the influence of the German Civil Code. The Code of Obligations was drafted in a strikingly understandable style, without many instances of abstract legal terminology, so that it could be readily understood by the common population.
Company law was subsequently revised in 1938, and the law regulating contracts of employment in 1972. The Code was revised in 2011, so that in the future requirements for book-keeping and accounting will not depend on a company's legal form, but on its financial size.
General Provisions (arts. 1-183)Edit
- Principle of freedom of contract;
- Conclusion of a contract;
- Interpretation of a contract;
- Nullity of a contract: impossibility, unlawfulness, immorality, non-respect of the required form;
- Defeasibility of a contract: unfair advantage, error, fraud, duress;
- Non-commercial agency;
- Breach of contract;
- Quasi-contractual obligations;
- Obligations in tort;
- Restitution of an unjust enrichment;
- Time limits.
Types of Contractual Relationship (184-551)Edit
- sale and exchange (184-238);
- sale of movable property (187-215);
- sale of immovable property (216-221);
- gifts (239-252);
- rental (253-304);
- loan (305-318);
- loan for use (commodatum) (305-311);
- loan for consummation (mutuum) (312-318);
- employment contracts (319-362);
- hire of services (363-379);
- publishing contract (380-393);
- mandate (394-418);
- negotiorum gestio (419-424);
- commission contract (425-439);
- contract of carriage (440-457);
- power of attorney / commercial agency (458-465);
- delegation (466-471);
- deposit (472-491);
- suretyship (492-512);
- gambling and betting (513-515);
- life annuity contract and lifetime maintenance agreement (516-529);
- simple partnership (530-551).
Commercial Enterprises and the Cooperative (552-926)Edit
Types of business associations:
- sole proprietorship;
The Commercial Register, Business Names and Commercial Accounting (927-964)Edit
Negotiable Securities (965-1186)Edit
Principles and influencesEdit
The contract law of the Code of Obligations is based on Roman Law traditions, and it was particularly influenced by the Pandectist school. It was also heavily influenced by the Code Napoleon of 1804.
Swiss contract law discriminates between general and special contract rules. The general rules are based on legal theory developed in the 17th and 18th centuries, while special rules are based on Roman law traditions. It is divided into a general part, which applies to all contracts, and a special part, which applies to specific types of contracts, such as sales of goods or loans.
The Code is governed by the principle of the freedom to contract, which includes freedom as to the content and type of the contract, and the freedom of the parties to enter into agreements which are not governed by the special part of the Code.
One major difference compared to contract law in Common Law jurisdictions is the lack of a requirement of consideration. The concept of frustration of purpose is also not part of the Swiss legal tradition.
The first version of the Swiss Code of Obligations influenced parts of the German Civil Code, the Chinese Code of Taiwan (Book II), the Code of South Korea (Part III) and the Code of Thailand (Book II). The Turkish Civil Code, adopted in 1926, is based on the Swiss Civil Code, which also includes the Code of Obligations.
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