The Swiss Code of Obligations (SR/RS 22, german: Obligationenrecht; french: Code des obligations; it, Diritto delle obbligazioni; rm, 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
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
and corporations (
Aktiengesellschaft
(; abbreviated AG, ) is a German word for a corporation limited by Share (finance), share ownership (i.e. one which is owned by its shareholders) whose shares may be traded on a stock market. The term is used in Germany, Austria, Switzerland (wh ...
). It was first adopted in 1911 (effective since 1 January 1912).
Swiss law is often used to regulate international contracts, as it is deemed neutral with respect to the parties.
It is no. 220 in the Swiss
Official Compilation of Federal Legislation
The ''Official Compilation of Federal Legislation'' (german: Amtliche Sammlung des Bundesrechts, AS; french: Recueil officiel du droit fédéral, RO; it, Raccolta ufficiale delle leggi federali, RU) is the federal government gazette of Switzerland ...
.
History
In Switzerland,
private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
was originally left to the individual Swiss cantons, which enacted codifications such as the Zurich Law of Obligations of 1855.
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 Heinrich may refer to:
People
* Heinrich (given name), a given name (including a list of people with the name)
* Heinrich (surname), a surname (including a list of people with the name)
*Hetty (given name), a given name (including a list of peo ...
.
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
Johann Caspar (also Kaspar) Bluntschli (7 March 1808 – 21 October 1881) was a Swiss jurist and politician. Together with fellow liberals Francis Lieber and Édouard René de Laboulaye, he developed one of the first codes of international law a ...
.
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
German(s) may refer to:
* Germany (of or related to)
**Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
**Ger ...
.
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.
Contents
The Code of Obligations includes five divisions.
The Code of Obligations is part of the Civil Code, but its provisions are numbered individually.
General Provisions (arts. 1-183)
Includes general contract law,
tort law
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
,
unjust enrichment
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...
.
* Principle of
freedom of contract
Freedom of contract is the process in which individuals and groups form contracts without government restrictions. This is opposed to government regulations such as minimum-wage laws, competition laws, economic sanctions, restrictions on pri ...
;
* 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
Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party ...
;
* Quasi-contractual obligations;
* Obligations in tort;
* Restitution of an
unjust enrichment
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...
;
* Time limits.
Types of Contractual Relationship (184-551)
Includes specific contracts,
including the purchase contract (184-236),
employment contract
An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between parties to a bargain.
The contract is between an "employee" and an "employer". It has arisen out of the old ...
(363-379),
mandate contract (394-406).
* sale and exchange (184-238);
** sale of movable property (187-215);
** sale of
immovable property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
(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
An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between parties to a bargain.
The contract is between an "employee" and an "employer". It has arisen out of the old ...
(319-362);
* hire of services (363-379);
*
publishing contract A publishing contract is a legal contract between a publisher and a writer or author (or more than one), to publish original content by the writer(s) or author(s). This may involve a single written work, or a series of works.
In the case of music p ...
(380-393);
* mandate (394-418);
* ''
negotiorum gestio
''Negotiorum gestio'' (, Latin for "management of business") is a form of spontaneous voluntary agency in which an intervenor or intermeddler, the ''gestor'', acts on behalf and for the benefit of a principal (''dominus negotii''), but without the ...
'' (419-424);
* commission contract (425-439);
*
contract of carriage
A contract of carriage is a contract between a carrier of goods or passengers and the consignor, consignee or passenger. Contracts of carriage typically define the rights, duties and liabilities of parties to the contract, addressing topics such ...
(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
A life annuity is an annuity, or series of payments at fixed intervals, paid while the purchaser (or annuitant) is alive. The majority of life annuities are insurance products sold or issued by life insurance companies however substantial case l ...
contract and lifetime maintenance agreement (516-529);
* simple partnership (530-551).
Commercial Enterprises and the Cooperative (552-926)
Corporate law.
Types of business associations:
*
sole proprietorship
A sole proprietorship, also known as a sole tradership, individual entrepreneurship or proprietorship, is a type of enterprise owned and run by one person and in which there is no legal distinction between the owner and the business entity. A sole ...
;
* partnerships:
**
general partnership
A general partnership, the basic form of partnership under common law, is in most countries an association of persons or an unincorporated company with the following major features:
*Must be created by agreement, proof of existence and estoppel ...
(552-593);
**
limited partnership
A limited partnership (LP) is a form of partnership similar to a general partnership except that while a general partnership must have at least two general partners (GPs), a limited partnership must have at least one GP and at least one limited ...
(594-619);
* companies:
**
public limited company
A public limited company (legally abbreviated to PLC or plc) is a type of public company under United Kingdom company law, some Commonwealth of Nations, Commonwealth jurisdictions, and the Republic of Ireland. It is a limited liability company ...
(plc. or German: AG, French/Italian: SA; 620-763);
**
partnership limited by shares A partnership limited by shares is a hybrid between a partnership and a limited liability company. The capital and ownership of the company is divided between shareholders who have a limited liability and one or more partners who have full liabi ...
(764-771);
**
private limited company
A private limited company is any type of business entity in "private" ownership used in many jurisdictions, in contrast to a publicly listed company, with some differences from country to country. Examples include the '' LLC'' in the United Sta ...
(Ltd. or German: GmbH, French: S.á.r.l, Italian: S.a.g.l.; 772-827);
** cooperative (828-926).
The Commercial Register, Business Names and Commercial Accounting (927-964)
*
Business name
A trade name, trading name, or business name, is a pseudonym used by companies that do not operate under their registered company name. The term for this type of alternative name is a "fictitious" business name. Registering the fictitious name w ...
s (944-956);
* Commercial accounting and
Financial Reporting
Financial statements (or financial reports) are formal records of the financial activities and position of a business, person, or other entity.
Relevant financial information is presented in a structured manner and in a form which is easy to un ...
(957-963).
Negotiable Securities (965-1186)
Commercial paper
Commercial paper, in the global financial market, is an unsecured promissory note with a fixed maturity of rarely more than 270 days. In layperson terms, it is like an " IOU" but can be bought and sold because its buyers and sellers have some ...
s.
* registered securities (974-977);
* bearer securities (978-989);
* bills and notes (990-1099);
*
cheque
A cheque, or check (American English; see spelling differences) is a document that orders a bank (or credit union) to pay a specific amount of money from a person's account to the person in whose name the cheque has been issued. The pers ...
(1100-1144);
* bill-like securities and other instruments to order (1145-1152);
* document of
title of goods (1153-1155);
*
bonds (1156-1186);
Principles and influences
The
contract law
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
of the Code of Obligations is based on
Roman Law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
traditions, and it was particularly influenced by the
Pandectist
The Pandectists were German university legal scholars in the early 19th century who studied and taught Roman law as a model of what they called ''Konstruktionsjurisprudenz'' (conceptual jurisprudence) as codified in the Pandects of Justinian (Berm ...
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
Freedom of contract is the process in which individuals and groups form contracts without government restrictions. This is opposed to government regulations such as minimum-wage laws, competition laws, economic sanctions, restrictions on pric ...
,consideration
Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions.
The court in ''Currie v Misa'' declared ...
. The concept of frustration of purpose
Frustration of purpose, in law, is a defense to enforcement of a contract. Frustration of purpose occurs when an unforeseen event undermines a party's principal purpose for entering into a contract such that the performance of the contract is rad ...
is also not part of the Swiss legal tradition.Turkish Civil Code
Turkish civil code ( tr, Türk Medeni Kanunu) is one of the earliest laws in the history of Turkey within the scope of Turkish reforms.
Background
During the Ottoman Empire, the legal system of Turkey was Sharia like other Muslim countries. A co ...
, adopted in 1926, is based on the Swiss Civil Code, which also includes the Code of Obligations.
See also
* Swiss law
Swiss law is a set of rules which constitutes the law in Switzerland.
Structure and Sources
There is a hierarchy of political levels which reflects the legal and constitutional character of Switzerland.
The Federal law (german: Bundesrecht, f ...
* Swiss Civil Code
The Swiss Civil Code (SR/RS 210, german: Schweizerisches Zivilgesetzbuch (ZGB); french: Code civil suisse (CC); it, Codice civile svizzero (CC); rm, Cudesch civil svizzer) is a portion of the second part (SR/RS 2) of the internal Swiss law ("Pr ...
* Swiss Criminal Code
, french: Code pénal suisse (CP), it, Codice penale svizzero (CP), rm, Cudesch penal svizzer
, citation =
, territorial_extent = Switzerland
, enacted_by = Federal Assembly of Switzerland
, date_enacted = 20 Decemb ...
* Swiss Alliance of Consumer Organisations
References
External links
SR220Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations)
- English semi-official translation
{{Authority control
Law of Switzerland
Civil codes
Law of obligations