The Federal Assembly of the Swiss Confederation,
based on Article 122 paragraph 1 of the Federal Constitution1, and having considered the Federal Council Dispatch of 28 June 20062,
Art. 1 Subject matter
This Code governs the proceedings before the cantonal authorities for:
- contentious civil matters;
- court orders in non-contentious matters;
- court orders in matters of debt enforcement and bankruptcy law;
Art. 2 International matters
The provisions of international treaties and of the Federal Act of 18 December 19871 on International Private Law (IPLA) are reserved.
Art. 3 Organisation of the courts and the conciliation authorities
The organisation of the courts and the conciliation authorities is in the competence of the cantons, unless the law provides otherwise.
Art. 4 Principles
1Cantonal law governs the material jurisdiction and functional jurisdiction of the courts, unless the law provides otherwise.
2If the material jurisdiction depends on the value in dispute, such value is calculated according to this Code.
Art. 5 Court of sole cantonal instance
1The cantonal law designates the court that has jurisdiction as sole cantonal instance for:
- disputes in connection with intellectual property rights, including disputes concerning the nullity, ownership, licensing, transfer and violation of such rights;
- cartel law disputes;
- disputes on the use of a business name;
- disputes under the Unfair Competition Act of 19 December 19861 if the amount in dispute exceeds 30,000 francs or if the Confederation exercises its right to file an action;
- disputes under the Nuclear Energy Public Liability Act of 18 March 19832;
- claims against the Confederation;
- the designation of a special comptroller by virtue of Article 697b of the Code of Obligations (CO)3;
- disputes under the Collective Investment Schemes Act of 23 June 20065, the Stock Exchange Act of 24 March 19956 and the Financial Market Infrastructure Act of 19 June 20157.
- disputes under the Coat of Arms Protection Act of 21 June 20139, the Federal Act of 25 March 195410 on the Protection of the Emblem and Name of the Red Cross and the Federal Act of 15 December 196111 on the Protection of the Names and Emblems of the United Nations Organization and other Intergovernmental Organisations.
2This court is also competent to order interim measures before an action is pending.
Art. 6 Commercial Court
1The cantons may designate a special court that has jurisdiction as sole cantonal instance for commercial disputes (Commercial Court).
2A dispute is considered commercial, if:
- it concerns the commercial activity of at least one party;
- the decision is subject to an objection in civil matters to the Federal Supreme Court; and
- the parties are registered in the Swiss Commercial Registry or in an equivalent foreign registry.
3If only the defendant is registered in the Swiss Commercial Register or in an equivalent foreign register, but all the other conditions are met, the plaintiff may choose between the Commercial Court and the ordinary court.
4The cantons may also assign to the Commercial Court:
- the disputes mentioned in Article 5 paragraph 1;
- the disputes relating to the law of commercial companies and cooperatives.
5The Commercial Court is also competent to order interim measures before an action is pending.
Art. 7 Disputes concerning insurance supplementary to social health insurance
The cantons may designate a court that has jurisdiction as sole cantonal instance for disputes relating to insurance supplementary to social health insurance under the Federal Act of 18 March 19941 on Health Insurance.
Art. 8 Direct action before the higher court
1If in a financial dispute the value in dispute is at least CHF 100,000, the plaintiff may, with the consent of the defendant, file its action directly before the higher court.
2This court decides as the sole cantonal instance.
Art. 9 Mandatory jurisdiction
1A place of jurisdiction is mandatory only if the law expressly so provides.
2Parties may not derogate from a mandatory place of jurisdiction.
Art. 10 Domicile and registered office
1Unless this Code provides otherwise, the following court has jurisdiction:
- for actions against a natural person: the court at the person's domicile;
- for actions against legal entities, public corporations and institutions as well as general partnerships and limited partnerships: the court at the location of their registered office;
- for actions against the Confederation: the Supreme Court of the Canton of Bern or the supreme court of the canton where the plaintiff's domicile, registered office or habitual residence is located;
- for actions against a canton: a court in the canton's capital.
2Domicile is determined in accordance with the Civil Code (CC)1. Article 24 CC does not apply.
Art. 11 Residence
1If the defendant has no domicile, the court at his or her habitual residence has jurisdiction.
2A habitual residence is the place where a person lives for a certain period of time, even if that period is limited from the outset.
3If the defendant has no habitual residence, the court at his or her last known place of residence has jurisdiction.
Art. 12 Establishment
For actions arising out of the commercial or professional activity of an establishment or branch, the court at the defendant's domicile or registered office or at the location of the establishment has jurisdiction.
Art. 13 Interim measures
Unless the law provides otherwise, the following court has mandatory jurisdiction to order interim measures:
- the court that has jurisdiction to decide the main action; or
- the court at the place where the measure is to be enforced.
Art. 14 Counterclaim
1A counterclaim may be filed in the court that has jurisdiction over the main action, provided the counterclaim has a factual connection with the main action.
2This place of jurisdiction subsists even if the main action is dismissed for whatever reason.
Art. 15 Joinder of parties and joinder of actions
1If an action is directed against two or more defendants, the court that has jurisdiction with regard to one defendant has jurisdiction with regard to all defendants unless jurisdiction is based solely on an agreement on jurisdiction.
2If two or more actions that are factual connected are raised against one and the same defendant, each court that has jurisdiction over any one of the actions has jurisdiction over all of them.
Art. 16 Third party action
The court that has jurisdiction to decide the main action also decides on the third party action.
Art. 17 Agreement on jurisdiction
1Unless the law provides otherwise, the parties may agree on which court has jurisdiction over an existing or future dispute arising from a particular legal relationship. Unless the agreement provides otherwise, the action may only be brought before agreed court.
2The agreement must be in writing or in any other form allowing it to be evidenced by text.
Art. 18 Acceptance by appearance
Unless the law provides otherwise, the seised court has jurisdiction if the defendant enters an appearance on the merits without objecting to the court's jurisdiction.
Art. 19 Non-contentious matters
Unless the law provides otherwise, the court or authority at the domicile or registered office of the applicant has mandatory jurisdiction over non-contentious matters.
Art. 20 Protection of personal privacy and data protection
The court at the domicile or registered office of either of the parties has jurisdiction to decide on:
- actions based on an invasion of the personal privacy;
- requests for a right of reply;
- actions for name protection and actions challenging a name change;
- actions and requests based on Article 15 of the Federal Act of 19 June 19921 on Data Protection.
Art. 21 Declaration of death and declaration of presumed death
The court at the last known domicile of the missing person has mandatory jurisdiction over applications relating to a declaration of death or declaration of presumed death (Art. 34 to 38 CC1).
Art. 22 Modification of the civil register
For actions concerning the modification of the civil register, the court of the district in which the entry to be modified was made or should have been made has mandatory jurisdiction.
Art. 23 Applications and actions based on marital law
1The court at the domicile of either of the parties has mandatory jurisdiction over applications and actions based on marital law as well as applications for interim measures.
2The court at the domicile of the debtor has mandatory jurisdiction over applications for separation of property by the supervisory authority in debt enforcement and bankruptcy matters.
Art. 24 Applications and actions in registered partnership matters
The court at the domicile of one of the parties has mandatory jurisdiction over applications and actions in matters of registered partnerships as well as requests for interim measures.
Art. 25 Actions relating to parent-child relationships
The court at the domicile of one of the parties has mandatory jurisdiction over actions to declare or contest a parent-child relationship.
Art. 26 Actions for maintenance and assistance
The court at the domicile of either of the parties has mandatory jurisdiction over separate actions claiming maintenance brought by children against their parents or for actions against relatives with an obligation to provide assistance.
Art. 27 Claims of the unmarried mother
The court at the domicile of either of the parties has mandatory jurisdiction over the claims of the unmarried mother.
1The court at the last domicile of the deceased has jurisdiction over actions under the law of succession as well as actions for the division of the marital property on the death of a spouse or a registered partner.
2The authorities at the last domicile of the deceased have mandatory jurisdiction over measures in connection with succession. If death did not occur at the domicile, the authorities at the place of death shall notify the authorities at the place of domicile and take the necessary measures to ensure the conservation of the assets situated at the place of death.
3Independent actions for the allocation on death of an agricultural enterprise or agricultural land may also be brought before the court at the place where the property is located.
Art. 29 Immovable property
1The court at the place where a property is or should be recorded in the land register has jurisdiction to decide on:
- actions in rem;
- actions against the community of condominium owners;
- actions for the registration of statutory charges on immovable property.
2Other actions relating to immovable property rights may also be brought before the court at the domicile or registered office of the defendant.
3If an action concerns multiple properties or if a property is recorded in the land register of several districts, the court where the largest property or the largest part of the property is situated has jurisdiction.
4In non-contentious matters relating to immovable property rights, the court at the place where the property is or should be recorded in the land register has mandatory jurisdiction.
Art. 30 Chattels
1For actions relating to rights in rem or possession of chattels or claims secured by charges on chattels, the court at the domicile or registered office of the defendant or at the place where the item is located has jurisdiction.
2In non-contentious matters, the court at the domicile or registered office of the applicant or with the court at the place where the item is located has mandatory jurisdiction.
Art. 31 Principle
The court at the domicile or registered office of the defendant or at the place where the characteristic performance must be rendered has jurisdiction over actions related to contracts.
Art. 32 Consumer contracts
1The following court has jurisdiction in disputes concerning consumer contracts:
- for actions brought by the consumer: the court at the domicile or registered office of one of the parties;
- for actions brought by the supplier: the court at the domicile of the defendant.
2Consumer contracts are contracts on supplies for ordinary consumption intended for the personal use of the consumer or his family and offered by the other party in the course of its professional or commercial activity.
Art. 33 Tenancy and lease of immovable property
The court at the place where the immovable property is situated has jurisdiction to decide actions based on a contract for the tenancy or lease of immovable property.
Art. 34 Employment Law
1The court at the domicile or registered office of the defendant or where the employee normally carries out his or her work has jurisdiction to decide actions relating to employment law.
2If a job applicant or an employee brings an action based on the Recruitment Act of 6 October 19891, the court at the place of the business establishment of the recruitment or hiring agent with whom the contract was concluded also has jurisdiction.
Art. 35 Waiver of statutory jurisdiction
1The following persons may not waive the jurisdiction provided for in Articles 32 to 34, whether in by advance agreement or by entering appearance:
- the consumer;
- the tenant or lessee of a residential or business property;
- the farmer in case of agricultural farm leases;
- the person seeking employment or the employee.
2The conclusion of an agreement on jurisdiction after the emergence of the dispute is reserved.
Art. 36 Principle
The court at the domicile or registered office of the aggrieved person or the defendant, or where the act occurred or had its effect has jurisdiction over actions in tort.
Art. 37 Damages for unjustified interim measures
The court at the domicile or registered office of the defendant or at the place where the measures have been ordered has jurisdiction to decide actions for damages resulting from unjustified interim measures.
Art. 38 Motor vehicle and bicycle accidents
1The court at the domicile or registered office of the defendant or at the place of the accident has jurisdiction to decide actions resulting from motor vehicle and bicycle accidents.
2Actions against the Swiss National Bureau of Insurance (Art. 74 of the Road Traffic Act of 19 December 19581; RTA) or against the Swiss National Guarantee Fund (Art. 76 RTA) may also be brought before the court at the place of any branch of such institutions.
Art. 39 Incidental civil claim
The competence of the criminal court to decide incidental civil actions is reserved.
Art. 40 Company law
The court at the domicile or registered office of the defendant or the court at the registered office of the company has jurisdiction to decide actions concerning liability in company law.
Art. 42 Mergers, demergers, transformations, transfers of assets and liabilities
The court at the registered office of one of the involved entities has jurisdiction to decide actions relating to the Mergers Act of 3 October 20031.
Art. 43 Cancellation of securities and insurance policies, injunction against payment
1The court at the registered office of the company has mandatory jurisdiction to declare the cancellation of shares.
2The court at the place where the immovable property is recorded in the land register has mandatory jurisdiction to declare the cancellation of mortgage instruments.
3The court at the domicile or registered office of the debtor has mandatory jurisdiction to declare the cancellation of other securities and insurance policies.
4The court at the place of payment has mandatory jurisdiction to issue injunctions against payment under a bill of exchange or cheque and to declare their cancellation.
Art. 44 Bonds
The place of jurisdiction for the authorisation to convene a creditors' meeting is governed by Article 1165 CO1.
Art. 45 Collective investment schemes
The court at the registered office of the concerned licence holder has mandatory jurisdiction to decide on actions brought by the investors or the representative of the community of investors.
The place of jurisdiction for actions under the Federal Act of 11 April 18891 on Debt Enforcement and Bankruptcy (DEBA) is determined by this chapter unless the DEBA provides for a place of jurisdiction.
Art. 47 Grounds for recusal
1Judges and judicial officers shall recuse themselves if:
- they have a personal interest in the case;
- they have acted in the same case in another capacity, in particular as member of an authority, legal agent, expert witness, witness or mediator;
- they are or were married to, or live or lived in a registered partnership or co-habit with a party or his or her representative or a person who has acted in the same case as a member of the lower court;
- they are related to a party by birth or marriage in direct line or in collateral line up to the third degree;
- they are related by birth or marriage in direct line or in collateral line up to the second degree to the representative of a party or a person who has acted in the same case as a member of the lower court;
- they may not be impartial for other reasons, notably due to friendship or enmity with a party or his or her representative.
2Involvement in the following, in particular, is in itself no reason for recusal:
- the decision on legal aid;
- the conciliation proceedings;
- the setting aside of an objection under Articles 80 to 84 DEBA1;
- the ordering of interim measures;
- proceedings for protection of the marital union.
Art. 48 Duty to provide information
The judge or judicial officer concerned shall make a timely disclosure of any possible reason for recusal and shall recuse him- or herself voluntarily if he or she considers that such reason exists.
Art. 49 Application for recusal
1A party that wishes to challenge a judge or judicial officer must file the corresponding application as soon as it has become aware of the reason for recusal. It must show credibly the facts that justify the challenge.
2The judge or judicial officer concerned shall respond to the application.
Art. 50 Decision
1If the reason given for recusal is disputed, the court shall decide.
2The decision may be challenged by objection.
Art. 51 Consequences of violating the regulations on recusal
1Procedural acts in which a person obliged to recuse him- or herself has participated must be annulled and repeated if a party so requests within 10 days of becoming aware of the reason for recusal.
2If the taking of evidence cannot be repeated, the relevant evidence may be taken into consideration by the deciding court.
3If a reason for recusal is detected only after the close of the proceedings, the provisions on review apply.
Art. 52 Acting in good faith
All those who participate in proceedings must act in good faith.
Art. 53 Right to be heard
1The parties have the right to be heard.
2They have in particular the right to consult the case files and to obtain copies thereof provided this does not conflict with overriding public or private interests.
Art. 54 Publicity
1Hearings and any oral passing of judgment shall be conducted in public. The decisions are made accessible to the public.
2Cantonal law determines whether the deliberations are public.
3Proceedings may be held completely or partially in camera when required by public interest or by the legitimate interests of a person involved.
4Family law proceedings are not conducted in public.
Art. 55 Principles of production of evidence and of ex-officio investigation
1The parties must present the court with the facts in support of their case and submit the related evidence.
2Statutory provisions relating to the ex-officio establishment of facts and taking of evidence are reserved.
Art. 56 Court's duty to enquire
If a party's submissions are unclear, contradictory, ambiguous or manifestly incomplete, and the court shall give the party the opportunity to clarify or complete the submission by asking appropriate questions.
Art. 57 Ex-officio application of the law
The court applies the law ex-officio.
Art. 58 Principles of non ultra petita and ex-officio assessment
1The court may not award a party anything more than or different from what the party has requested, nor less than what the opposing party has acknowledged.
2The statutory provisions under which the court is not bound by the parties' requests are reserved.
Art. 59 Principle
1The court shall consider an action or application provided the procedural requirements are satisfied.
2Procedural requirements are in particular the following:
- the plaintiff or applicant has a legitimate interest;
- the court has subject matter and territorial jurisdiction;
- the parties have the capacity to be a party and the capacity to take legal action;
- the case is not the subject of pending proceedings elsewhere;
- the case is not already the subject of a legally-binding decision;
- the advance and security for costs have been paid.
Art. 60 Verification of compliance with the procedural requirements
The court shall examine ex-officio whether the procedural requirements are satisfied.
Art. 61 Arbitration agreement
If the parties have concluded an arbitration agreement relating to an arbitrable dispute, the seised court shall declines jurisdiction unless:
- the defendant has made an appearance without reservation;
- the court holds that the arbitration agreement is manifestly invalid or unenforceable; or
- the arbitral tribunal cannot be constituted for reasons that are manifestly attributable to the defendant in the arbitration proceedings.
Art. 62 Start of pendency
1A case becomes pending when an application for conciliation, an action, an application, or a joint request for divorce is filed.
2Confirmation of receipt of such submissions shall be issued to the parties.
Art. 63 Pendency where the court has no jurisdiction or the procedure is incorrect
1If a submission that has been withdrawn or rejected due to lack of jurisdiction is filed again with the competent conciliation authority or court within one month of withdrawal or the declaration of non-admissibility, the date of the first filing is deemed to be the date of pendency.
2The same applies if the claim was not filed under the proper procedure.
3The special statutory deadlines for filing actions under the DEBA1 are reserved.
Art. 64 Effects of pendency
1The pendency of an action has in particular the following effects:
- the subject matter of the dispute may not be made pending elsewhere between the same parties;
- the territorial jurisdiction of the court is maintained.
2When compliance with statutory deadline under private law depends on the date of the statement of claim, of raising an action or of another act initiating legal proceedings, the relevant moment is that of pendency in accordance with this Code.
Art. 65 Effects of withdrawal
Any person who withdraws an action before the competent court may not bring proceedings again against the same party on the same subject matter if the court has already served the statement of claim on the defendant and the defendant does not consent to its withdrawal.
Art. 66 Capacity to be a party
The capacity to be a party is subject to legal capacity or the qualification as a party by virtue of federal law.
Art. 67 Capacity to take legal action
1Any person who has the capacity to act has the capacity to take legal action.
2A person without capacity to act may act through his legal representative.
3Provided a person without the capacity to act has the capacity to consent, he or she may:
- independently exercise those rights conferred by virtue of his or her personality;
- temporarily take the acts necessary in cases of imminent danger.
Art. 68 Representation by agreement
1Any person who has capacity to take legal action may choose to be represented in proceedings.
2The following persons are allowed to act as professional representatives:
- in all proceedings: lawyers admitted to represent parties before Swiss courts under the Lawyers Act of 23 June 20001;
- before the conciliation authorities, in financial disputes under the simplified procedure and in cases under the summary procedure: licensed administrators and legal agents if provided for by cantonal law;
- in cases under the summary procedure in accordance with Article 251 of this Code: professional representatives under Article 27 DEBA2;
- before the special courts for tenancy matters and for employment matters: professionally qualified representatives if provided for by cantonal law.
3The representative must prove his or her authority by power of attorney.
4The court may order the personal appearance of a represented party.
Art. 69 Inability to appear
1If a party is manifestly unable to appear, the court may invite that party to appoint a representative. If the party does not comply within the set deadline, a representative shall be appointed by the court.
2The court shall notify the Adult and Child Protection Authority if protective measures are deemed necessary.1
Art. 70 Mandatory joinder
1If two or more persons are in a legal relationship that calls for one single decision with effect for all of them, they must jointly appear as plaintiffs or be sued as joint defendants.
2Procedural measures duly taken by one of the joint parties are likewise effective for the others, with the exception of challenging a decision.
Art. 71 Voluntary joinder
1Two or more persons whose rights and duties result from similar circumstances or legal grounds may jointly appear as plaintiffs or be sued as joint defendants.
2Voluntary joinder is excluded if the individual cases are subject to different types of procedure.
3Each of the joint parties may proceed independently from the others.
Art. 72 Joint representation
The joint parties may appoint a joint representative, failing which service is made to each party individually.
1Any person who claims to have a better right in the object of a dispute, to the total or partial exclusion of both parties, may bring a claim directly against both parties in the court in which the dispute is pending in first instance.
2The court may either suspend the proceedings until the case of the principal intervenor is finally concluded, or join the two cases.
Art. 74 Principle
Any person who shows a credible legal interest in having a pending dispute decided in favour of one of the parties may intervene at any time as an accessory party and for this purpose submit to the court an intervention application.
Art. 75 Application
1The application for intervention shall indicate the reasons for intervention and the party in whose favour the intervention is made.
2The court decides on the application after hearing the parties. The decision may be challenged by way of objection.
Art. 76 Rights of the Intervenor
1The intervenor may carry out any procedural acts in support of the principal party, provided they are permitted at the relevant stage of the proceedings; he or she may in particular make use of any offensive or defensive measures and also seek appellate remedies.
2The procedural acts of the intervenor shall not be taken into consideration in the proceedings if they are contradictory to those of the principal party.
Art. 77 Effect of intervention
A result that is unfavourable to the principal party is effective against the intervenor, unless:
- the state of the proceedings at the moment of intervention or the acts or omissions of the principal party have prevented the intervenor from making use of offensive or defensive measures; or
- the principal party has failed, wilfully or through gross negligence, to make use of offensive or defensive measures of which the intervenor was not aware.
Art. 78 Principles
1A party may notify a third party of the dispute if, in the event of being unsuccessful, he or she might take recourse against or be subject to recourse by a third party.
2The notified third party may also give notice of the dispute.
Art. 79 Standing of the third party
1The notified third party may:
- intervene in favour of the notifying principal party, without further conditions; or
- proceed in place of the notifying principal party, with the consent of the latter.
2If the notified third party refuses to intervene or does not answer the notification, the proceedings shall continue without considering the third party.
Art. 80 Effects of notice
Article 77 applies by analogy.
Art. 81 Principles
1The notifying party may assert the rights that he or she believes he or she will have against the notified third party in the event that he or she is unsuccessful in the court that is dealing with the main action.
2The notified third party may not bring a further third party action.
3The third party action is not admissible under the simplified or summary procedures.
Art. 82 Procedure
1The request for the third party action to be admitted must be made with the answers or the reply in the main proceedings. The notifying party shall set out the prayers to be raised against the third party together with a brief statement of the grounds.
2The court shall give the opposing party and the third party the opportunity to respond.
3If the third party action is admitted, the court shall determine the time and extent of the related exchange of written submissions, subject to Article 125.
4The decision to admit the third party action may be challenged by way of objection.
1If the object in dispute is alienated in the course of the proceedings, the acquirer may take up the proceedings in place of the alienating party.
2The substitute party is liable for the entire costs of the proceedings. The retiring party is jointly and severally liable for the costs incurred until the substitution.
3In justified cases, the substituting party must, if so requested by the opposing party, provide security to guarantee the enforcement of the decision.
4In the absence of alienation of the object in dispute, the substitution of a party is permitted only with the consent of the opposing party; special legal provisions on the legal succession are reserved.
Art. 84 Action for performance
1By filing an action for performance, the plaintiff demands that the defendant be ordered to do, refrain from doing or tolerate something.
2In an action for the payment of money, the amount must be specified.
Art. 85 Action for an unquantified debt
1If it is impossible or unreasonable to quantify the amount of the debt at the start of the proceedings, the plaintiff may bring an action for an unquantified debt. However, the plaintiff must indicate a minimal amount as a provisional value in dispute.
2Once evidence is taken or the required information furnished by the defendant, the plaintiff must quantify the debt claim as soon as he or she is able to do so. The seised court maintains competence even if the value in dispute exceeds its material jurisdiction.
Art. 86 Partial action
If a claim is divisible, an action for part of the claim may be brought.
Art. 87 Action to modify a legal relationship
By filing an action to modify a legal relationship, the plaintiff demands the creation, modification or dissolution of a specific right or legal relationship.
Art. 88 Action for a declaratory judgment
By filing an action for a declaratory judgment, the plaintiff demands that the court establish that a right or legal relationship exists or does not exist.
Art. 89 Group action
1Associations and other organisations of national or regional importance that are authorised by their articles of association to protect the interests of a certain group of individuals may bring an action in their own name for a violation of the personality of the members of such group.
2They may request the court:
- to prohibit an imminent violation;
- to put an end to an ongoing violation;
- to establish the unlawful character of a violation if the latter continues to have a disturbing effect.
3Special legal provisions on group actions are reserved.
Art. 90 Combination of actions
The plaintiff may combine two or more claims against the same party in one action, if:
- they are within the material jurisdiction of the same court; and
- they are subject to the same type of procedure.
Art. 91 Principle
1The value in dispute is determined by the prayers for relief. Interest, costs of the ongoing proceedings or a possible publication of the decision and the value of possible subsidiary claims are not taken into account.
2If the prayers for relief do not specify a sum of money, the court shall determine the value in dispute if the parties are unable to reach an agreement or if the information they provide is manifestly incorrect.
Art. 92 Recurring usage or services
1Recurring usage or services have the value of the capital they represent.
2If the duration of the recurring usage or services is unknown or indefinite, the annual usage or services multiplied by twenty is deemed to be the value of the capital; in case of a life annuity, the amount of the capital corresponds to the actual cash value.
Art. 93 Joinder of parties and joinder of actions
1In the event of the voluntary joinder of parties or joinder of actions, the values of the claims are added together insofar as they are not mutually exclusive.
2In case of permissive joinder of parties, the type of procedure for each claim is maintained despite the addition of their values.
Art. 94 Counterclaim
1In the case of an action and counterclaim, the value in dispute is determined by the action with the higher value.
2For the purpose of determining the costs, the values of the action and the counterclaim are added together insofar as they are not mutually exclusive.
Art. 95 Definitions
1The procedural costs include:
- the court costs;
- the party costs.
2The court costs include:
- the fee for the conciliation proceedings;
- the fee for the decision (judgment fee);
- the costs of taking evidence;
- the costs of translation;
- the costs of representation for a child (Art. 299 and 300).
3The party costs include:
- the reimbursement of necessary outlays;
- the costs for professional representation;
- in justified cases: reasonable compensation for personal efforts if a party is not professionally represented.
Art. 96 Tariffs
The cantons set the tariffs for the procedural costs.
Art. 97 Advice on procedural costs
The court shall advise a party without legal representation on the costs to be expected and on legal aid.
Art. 98 Advance payment of costs
The court may demand that the plaintiff make an advance payment up to the amount of the expected court costs.
Art. 99 Security for party costs
1At the request of the defendant, the plaintiff must provide security for party costs:
- if he or she has no residence or registered office in Switzerland;
- if he or she appears to be insolvent, notably if he or she has been declared bankrupt or is involved in ongoing composition proceedings or if certificates of unpaid debts have been issued;
- if he or she owes costs from prior proceedings; or
- if for other reasons there seems to be a considerable risk that the compensation will not be paid.
2In the case of mandatory joinder, security must be provided only if each party fulfils one of the above mentioned conditions.
3No security need be provided:
- in simplified proceedings, with the exception of financial disputes under Article 243 paragraph 1;
- in divorce proceedings;
- in summary proceedings, with the exception of the proceedings in clear cases (Art. 257).
Art. 100 Nature and amount of security
1Security may be provided in cash or in the form of a guarantee from a bank with a branch in Switzerland or from an insurance company authorised to operate in Switzerland.
2The court may subsequently order the increase, reduction or return of the security.
Art. 101 Provision of advance and security
1The court sets a deadline for the provision of the advance and the security.
2It may order interim measures before the security is provided.
3If the advance or security is not provided even within a period of grace, the action or application shall be declared inadmissible.
Art. 102 Advance for taking of evidence
1Each party shall advance the costs for taking the evidence that he or she requires.
2If the parties offer the same evidence, each party shall advance half of the costs.
3If one party fails to pay an advance, the other party may do so, failing which the evidence shall not be taken. Matters in which the court must establish the facts ex officio are reserved.
Art. 103 Appellate remedy
Decisions relating to advances of costs and security may be challenged by way of objection.
Art. 104 Decision on costs
1As a general rule, the court decides on the procedural costs in the final decision.
2Where an interim decision is made (Art. 237), the procedural costs incurred up to that point may be allocated.
3The decision on the procedural costs for interim measures may be deferred until the final decision on the merits.
4If a case is referred back to a lower court, the higher court may leave it to the lower court to allocate the costs of the appellate proceedings.
Art. 105 Determination and allocation of costs
1The court costs are determined and allocated ex officio.
2The court awards party costs according to the tariffs (Art. 96). The parties may submit a statement of costs.
Art. 106 General principles of allocation
1The costs are charged to the unsuccessful party. If an action is not admitted by the court or if it is withdrawn, the plaintiff is deemed to be the unsuccessful party; in case of acceptance of the claim it is the defendant.
2If no party entirely is successful, the costs are allocated in accordance with the outcome of the case.
3If three or more persons are participating in the proceedings as principal parties or accessory parties, the court shall determine each party's share of the costs. It may hold the parties jointly and severally liable.
Art. 107 Discretionary allocation
1The court may diverge from the general principles of allocation and allocate the costs at its own discretion:
- if an action has been upheld in principle but not the full amount claimed, and if the amount of the award was determined at the court's discretion or if the claim was difficult to quantify;
- if a party was caused to litigate in good faith;
- in family law proceedings;
- in proceedings relating to a registered partnership;
- if the proceedings are dismissed as groundless and the law does not provide otherwise;
- if there are other extraordinary circumstances that would result in an allocation according to the outcome of the case being inequitable.
2Court costs that are not attributable to any party or third party may be charged to the canton if equitable.
Art. 108 Unnecessary costs
Unnecessary costs are charged to the party that caused them.
Art. 109 Allocation in the event of a settlement
1If a case is settled in court, the costs are charged to the parties according to the terms of the settlement.
2The costs are allocated according to Articles 106-108:
- if the settlement does not provide for the allocation of costs; or
- if, in terms of the settlement, the costs are charged solely to a party that has been granted legal aid.
Art. 110 Appellate remedy
The decision on costs may be separately challenged by way of objection only.
Art. 111 Recovery of costs
1The court costs are set off against the advances paid by the parties. The balance is collected from the person liable to pay.
2The party liable to pay shall reimburse the other party his or her advances and shall pay the other party the party costs awarded.
3The provisions on legal aid are reserved.
Art. 112 Deferment, waiver, prescription and interest
1The court may defer or, in the event of permanent lack of means, waive the court costs.
2The debt prescribes ten years after the close of proceedings.
3The default interest is 5 percent.
Art. 113 Conciliation proceedings
1No party costs are awarded in conciliation proceedings. Payment by the canton of legal agents under the legal aid system is reserved.
2No court costs are charged in disputes:
- relating to the Gender Equality Act of 24 March 19951;
- relating to the Disability Discrimination Act of 13 December 20022;
- relating to the rental and lease of residential and business property or the lease of agricultural property;
- relating to an employment contract or the Recruitment Act of 6 October 19893 up to an amount in dispute of 30,000 francs;
- relating to the Participation Act of 17 December 19934;
- relating to insurance supplementary to the social health insurance under the Federal Act of 18 March 19945 on Health Insurance.
Art. 114 Litigation proceedings
In litigation proceedings, no court costs are charged in disputes:
- relating to the Gender Equality Act of 24 March 19951;
- relating to the Disability Discrimination Act of 13 December 20022;
- relating to an employment contract or the Recruitment Act of 6 October 19893 up to an amount in dispute of 30,000 francs;
- relating to the Participation Act of 17 December 19934;
- relating to insurance supplementary to the social health insurance under the Federal Act of 18 March 19945 on Health Insurance.
Art. 115 Obligation to bear costs
Court costs may also be charged in cost-free proceedings to a party who proceeds in a vexatious manner or in bad faith.
Art. 116 Exemption under cantonal law
1The cantons may provide for further exemptions from procedural costs.
2Exemptions from costs that the canton provides for itself, its communes or other corporations under public cantonal law also apply to the Confederation.
Art. 117 Entitlement
A person is entitled to legal aid if:
- he or she does not have sufficient financial resources; and
- his or her case does not seem devoid of any chances of success.
Art. 118 Extent
1Legal aid comprises:
- an exemption from the obligation to pay advances and provide security;
- an exemption from court costs;
- the appointment by the court of a legal agent under the legal aid system if this is necessary to protect the rights of the party concerned, and in particular if the opposing party is represented by a legal agent; the legal agent under the legal aid system may be appointed prior to the court hearing in order to prepare the proceedings.
2Legal aid may be granted for all or part of the case.
3The grant of legal aid does not relieve the party concerned from paying party costs to the opposing party.
Art. 119 Application and procedure
1The application for legal aid may be made before or after an action becomes pending.
2The applicant must disclose his or her financial circumstances including income and assets and state his or her position on the merits of the case and the evidence he or she intends to produce. He or she may name a preferred legal agent in the application.
3The court shall decide on the application in summary proceedings. The opposing party may be heard, and must be heard if legal aid is to cover security for party costs.
4In exceptional circumstances, legal aid may be granted with retrospective effect.
5A new application for legal aid must be made in appellate proceedings.
6No court costs are charged for proceedings relating to the granting of legal aid, except in cases of bad faith or vexatious conduct.
Art. 120 Revocation of legal aid
The court shall revoke legal aid if the conditions are no longer fulfilled or if it comes to light that they never were fulfilled.
Art. 121 Appellate remedy
The decision by which legal aid is refused or revoked in full or in part may be challenged by way of objection.
Art. 122 Recovery of costs
1If a party with legal aid is unsuccessful, the costs shall be settled as follows:
- the legal agent under the legal aid system shall be adequately remunerated by the canton;
- the court costs shall be charged to the canton;
- the opposing party shall have its advances refunded;
- the party with legal aid must pay party costs to the opposing party.
2If the party with legal aid is successful, the legal agent under the legal aid system shall be adequately remunerated by the canton where compensation from the opposing party is irrecoverable or likely to be irrecoverable. By paying the remuneration, the canton becomes entitled to enforce the claim for costs.
Art. 123 Reimbursement
1A party must reimburse the legal aid received as soon as he or she is in a position to do so.
2The canton's claim prescribes 10 years after the close of proceedings.
Art. 124 Principles
1The court is the director of proceedings. It issues the required procedural rulings to enable the proceedings to be prepared and conducted efficiently.
2The role of director of proceedings may be delegated to one of the members of the court.
3The court may at any time attempt to achieve an agreement between the parties.
Art. 125 Simplification of proceedings
In order to simplify the proceedings, the court may, in particular:
- limit the proceedings to individual issues or prayers for relief;
- order the separation of jointly filed actions;
- order the joinder of separately filed actions;
- separate the counterclaim from the main proceedings.
Art. 126 Suspension of proceedings
1The court may suspend proceedings if appropriate. The proceedings may be suspended in particular if the decision depends on the outcome of other proceedings.
2Suspension may be challenged by way of objection.
Art. 127 Transfer of connected cases
1If factually connected cases are pending before different courts, the subsequently seised court may transfer the case to the court seised first if that court agrees to take over.
2The transfer may be challenged by way of objection.
Art. 128 Procedural discipline and vexatious conduct
1Any person who violates decency in court or disrupts the course of the proceedings shall be liable to a reprimand or a disciplinary fine not exceeding 1,000 francs. In addition, the court may exclude the person concerned from the hearing.
2The court may request the assistance of the police to enforce its orders.
3In the event of bad faith or vexatious conduct, the parties and their representatives shall be liable to a disciplinary fine not exceeding 2,000 francs, and in the event of a repetition not exceeding 5,000 francs.
4The disciplinary fine may be challenged by way of objection.
The proceedings shall be held in the official language of the canton in which the case is heard. Cantons that recognise two or more official languages shall regulate their use in the proceedings.
Art. 130 Form
1Submissions must be filed with the court in the form of paper documents or electronically. They must be signed.
2In the case of electronic submission, the submission and its enclosures must bear a qualified electronic signature in accordance with the Federal Act of 18 March 20162 on Electronic Signatures. The Federal Council shall regulate
- the format for submissions and their attachments;
- the method of transmission;
- the requirements for requesting the submission of documents in paper form in the event of technical problems.
Art. 131 Number of copies
Submissions and their attachments in paper form must be filed once for the court and once for each opposing party, failing which the court may set a period of grace or make the copies at the defaulting party's expense.
Art. 132 Defective, querulous and abusive submissions
1The court shall set a deadline for rectifying formal defects such as a missing signature or missing power of attorney. In the event of default, the submission is not taken into consideration.
2The same applies to submissions that are illegible, improper, incomprehensible or incoherent.
3Querulous or abusive submissions are returned to the sender without further formalities.
Art. 133 Content
The summons contains:
- the name and address of the summoned party;
- the matter in dispute and the parties;
- the capacity in which the party is summoned;
- the place, date and time of the appearance;
- the procedural act to which the party is summoned;
- the consequences of default;
- the date of the summons and the seal of the court.
Art. 134 Timing
Unless the law provides otherwise, the summons must be sent out at least 10 days prior to the date of appearance.
Art. 135 Postponement of appearance
If there is good reason, the court may postpone the date of an appearance. It may do so:
- ex officio; or
- if a request to do so is made before the date.
Art. 136 Documents to be served
The court shall serve the persons concerned in particular with:
- the summons;
- rulings and decisions;
- the submissions of the opposing party.
Art. 137 Service to a representative
If a party is represented, service is made to the representative.
Art. 138 Form
1The summons, rulings and decisions are served by registered mail or by other means against confirmation of receipt.
2Service is accomplished when the document has been received by the addressee or one of his or her employees or a person of at least 16 years of age living in the same household, unless the court instructs that a document must be served personally on the addressee.
3Service is also deemed to have been effected:
- in the case of a registered letter that has not been collected: on the seventh day after the failed attempt to serve it provided the person had to expect such service;
- in the case of personal service if the addressee refuses to accept service and if such refusal is recorded by the bearer: on the day of refusal.
4Other documents may be served by regular mail.
Art. 139 Electronic service
1With the consent of the person concerned, summonses, rulings and decisions may be served electronically. They must bear an electronic signature in accordance with the Federal Act of 18 March 20162 on Electronic Signatures.
2The Federal Council regulates:
a. the signature to be used;
b. the format for summonses, rulings and decisions and their attachments;
c. the method of transmission;
- the point in time at which the summons, ruling or decision is deemed to have been served.
Art. 140 Domicile for service
The court may instruct parties with domicile or registered office abroad to provide a domicile for service in Switzerland.
Art. 141 Public notice
1Service shall be effected by notice in the official gazette of the canton or in the Swiss Official Gazette of Commerce where:
- the whereabouts of the addressee are unknown and cannot be ascertained despite making reasonable enquiries;
- service is impossible or would lead to exceptional inconvenience;
- if a party with domicile or registered office abroad has not provided a domicile for service in Switzerland despite being instructed to do so by the court.
2Service is deemed accomplished on the day of publication.
Art. 142 Computation
1Limitation periods triggered by a communication or the occurrence of an event starting on the following day.
2If a limitation period is measured in months, it expires on the same date of the last month as the date of the month in which the period started to run. In the absence of such a date, the period expires on the last day of the month.
3If the last day of a limitation period is a Saturday, a Sunday or a public holiday recognised by federal or cantonal law at the location of the court, the period expires on the following working day.
Art. 143 Compliance
1Submissions must be filed no later than the last day of the limitation period, either by filing with the court or by handing over to Swiss Post or a diplomatic mission or consular office of Switzerland for forwarding on to the court.
2In case of electronic submission, the relevant time for compliance with a deadline is that at which the receipt is issued that confirms that all the steps have been completed that the party must carry out for transmission.1
3Payment to the court is made within the deadline if the funds are handed over to Swiss Post in favour of the court or debited from a postal or bank account in Switzerland no later than on the last day of the limitation period.
1 Amended by Annex No II 5 of the Federal Act of 18 March 2016 on Electronic Signatures, in force since 1 Jan. 2017 (AS 2016 4651; BBl 2014 1001).
Art. 144 Extension
1Statutory limitation periods may not be extended.
2Limitation periods set by the court may be extended for good reason if the request to do so is made before the period expires.
Art. 145 Suspension of limitation periods
1Statutory limitation periods or periods set by the court shall be suspended:
- from the seventh day before Easter up to and including the seventh day after Easter;
- from 15 July up to and including 15 August;
- from 18 December up to and including 2 January.
2The suspension does not apply:
- in conciliation proceedings;
- in summary proceedings.
3Parties must be made aware of the exceptions provided in paragraph 2 above.
4The provisions of the DEBA1 on debt enforcement holidays and suspension are reserved.
Art. 146 Effects of suspension
1If service is effected during suspension, the limitation period starts to run on the first day following the end of the suspension.
2No hearings are held in court during the suspension period, unless the parties agree otherwise.
Art. 147 Default and consequences of default
1A party is in default if he or she fails to accomplish a procedural act within the set limitation period or does not appear when summoned to appear.
2The proceedings shall continue without the act defaulted on unless the law provides otherwise.
3The court shall draw the parties' attention to the consequences of default.
Art. 148 Restitution
1The court may on application grant a period of grace or summon the parties again for a new appearance provided the defaulting party shows credibly that he or she was not responsible for the default or was responsible only to a minor extent.
2The application must be submitted within 10 days of the day when the cause of default has ceased to apply.
3If notice of a decision has been given to the parties, restitution may be requested only within six months after the decision has come into force.
Art. 149 Restitution procedure
The court shall invite the opposing party to comment on the application and shall issue a final decision.
Art. 150 Subject of evidence
1Evidence is required to prove facts that are legally relevant and disputed.
2Evidence may also be required to prove common practice, local usages and, in financial disputes, foreign law.
Art. 151 Known facts
Evidence is not required in support of publicly known facts, facts known to the court and commonly accepted rules of experience.
Art. 152 Right to evidence
1Each party is entitled to have the court accept the evidence that he or she offers in the required form and time.
2Illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth.
Art. 153 Taking of evidence ex officio
1The court takes evidence ex officio whenever it must ascertain the facts ex officio.
2It may take evidence ex officio if serious doubts exist as to the truth of an undisputed fact.
Art. 154 Ruling on evidence
Before evidence is taken, the court issues the necessary rulings. They indicate, in particular, the admissible evidence and, for each fact, which party has the burden of proof or counter-proof. Rulings on evidence may be changed or amended any time.
Art. 155 Taking of evidence
1The taking of evidence may be delegated to one or more members of the court.
2A party may, for good cause, request that the evidence be taken by the court that decides the case.
3The parties have the right to participate in the taking of evidence.
Art. 156 Safeguarding legitimate interests
The court shall take appropriate measures to ensure that taking evidence does not infringe the legitimate interests of any parties or third party, such as business secrets.
Art. 157 Free assessment of evidence
The court forms its opinion based on its free assessment of the evidence taken.
Art. 158 Precautionary taking of evidence
1The court shall take evidence at any time if:
- the law grants the right to do so;
- the applicant shows credibly that the evidence is at risk or that it has a legitimate interest.
2The provisions regarding interim measures apply.
Art. 159 Management bodies of a legal entity
If a legal entity is party to proceedings, its management bodies are deemed to be parties when taking evidence.