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Art. 11
A. Personality in general
I. Legal capacity
1 Every person has legal capacity. 2 Accordingly, within the limits of the law, every person has the same capacity to have rights and obligations.
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Art. 12
II. Capacity to act
1. Nature
A person who has capacity to act has the capacity to create rights and obligations through his actions.
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Art. 138
2. Requirements
a. In general
A person who is of age and is capable of judgement has the capacity to act. 8 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 149
A person is of age if he or she has reached the age of 18. 9Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), with effect from 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 1611
d. Capacity of judgement
A person is capable of judgement within the meaning of the law if he or she does not lack the capacity to act rationally by virtue of being under age or because of a mental disability, mental disorder, intoxication or similar circumstances. 11 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 1712
III. Incapacity
1. In general
A person does not have the capacity to act if he or she is incapable of judgement or is under age or is subject to a general deputyship. 12 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 18
2. Lack of capacity of judgement
A person who is incapable of judgement cannot create legal effect by his or her actions, unless the law provides otherwise.
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Art. 19
3. Persons capable of judgement but lacking the capacity to act.
a. Principle
1 Persons who are capable of judgement but lack the capacity to act may only enter into obligations or give up rights with the consent of their legal representative.14 2 Without such consent, they may only accept advantages that are free of charge or carry out minor everyday transactions.15 3 They are liable in damages for unpermitted acts. 14 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001). 15 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 19a16
b. Consent of the legal representative
1 Unless the law provides otherwise, the legal representative may consent expressly or tacitly in advance or approve the transaction retrospectively. 2 The other party is relieved of any obligation if approval is not given within a reasonable period that he or she fixes or has fixed by a court. 16 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 19b17
1 If the legal representative does not grant approval, either party may demand restitution of any performance already made. A person lacking capacity to act is however only liable to the extent that he or she has already benefited from the performance or to which he or she has been enriched at the time of the demand or has alienated the benefits in bad faith. 2 If the person lacking capacity to act has induced the other party to erroneously assume that he or she has the capacity to act, he or she is liable for the damage incurred. 17 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 19c18
4. Strictly personal rights
1 Persons capable of judgement but lacking capacity to act exercise their strictly personal rights independently; cases where the law requires the consent of the legal representative are reserved. 2 The legal representative acts for a person lacking capacity of judgement unless a right is so strictly personal that any form of representation is excluded. 18 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 19d19
IIIbis. Restriction of the capacity to act
The capacity to act may be restricted by an adult protection measure. 19 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 20
1 The degree of kinship21 is determined by the number of intermediary generations. 2 Lineal kinship exists between two persons where one is descended from the other and collateral kinship exists between two persons where both are descended from a third person and are not related lineally.
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Art. 2122
1 Where one person is related to another, he or she is related as an in-law to the latter’s spouse or registered partner in the same line and to the same degree. 2 Kinship by marriage is not ended by dissolution of the marriage or of the registered partnership which created it. 22 Amended by Annex No 8 of the Registered Partnership Act of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685;BBl2003 1288).
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Art. 22
V. Place of origin and domicile
1. Origin
1 The place of origin of a person is determined by his or her citizenship. 2 Citizenship is governed by public law. 3 If a person is a citizen of more than one place, his or her place of origin is the one in which he or she is or was most recently resident or, in the absence of any such residence, the one in which he or she or his or her ancestors last acquired citizenship.
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Art. 23
2. Domicile
a. Definition
1 A person’s domicile is the place in which he or she resides with the intention of settling; residence for the purpose of education or the accommodation of a person in an educative institution or care home, a hospital or a penal institution does not by itself establish domicile.23 2 No person may have more than one domicile at a time. 3 This provision does not apply to places of business. 23 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 24
b. Change of domicile, temporary residence
1 A person retains his or her domicile until such time as a new one is acquired. 2 A person’s domicile is deemed to be the place in which he or she is temporarily resident if no previously established domicile may be proven or if he or she was formerly resident abroad and has not yet established a domicile in Switzerland.
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Art. 2525
1 The domicile of a child subject to parental responsibility26 is deemed to be that of the parents or, if the parents have different domiciles, that of the parent with whom the child is resident; in all other cases it is deemed to be the child’s temporary domicile. 2 Children under guardianship are domiciled at the seat of the child protection authority.27 25Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122153Art. 1; BBl 1979 II 1191). 26 Term in accordance with No I 1 of the FA of 26 June 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1). This amendment is taken into consideration throughout the Code. 27 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 2628
d. Persons in institutions
Adults subject to a general deputyship are domiciled at the location of the adult protection authority. 28 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001).
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Art. 27
B. Protection of legal personality
I. Against excessive restriction
1 No person may, wholly or in part, renounce his or her legal capacity or his or her capacity to act. 2 No person may surrender his or her freedom or restrict the use of it to a degree which violates the law or public morals.
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Art. 2830
II. Against infringements
1. Principle
1 Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement. 2 An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.
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Art. 28a32
2. Actions
a. In general
1 The applicant may ask the court: - 1.
- to prohibit a threatened infringement;
- 2.
- to order that an existing infringement cease;
- 3.
- to make a declaration that an infringement is unlawful if it continues to have an offensive effect.
2 In particular the applicant may request that the rectification or the judgment be notified to third parties or published. 3 Claims for damages and satisfaction and for handing over profits in accordance with the provisions governing agency without authority are reserved.
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Art. 28b33
b. Violence, threats or harassment
1 To obtain protection from violence, threats or harassment, the applicant may request the court in particular to order the offending party to refrain from: - 1.
- approaching the applicant or from entering a defined area around the applicant’s dwelling;
- 2.
- frequenting specified locations, notably particular streets, squares or districts;
- 3.
- from making contact with the applicant, especially by telephone, in writing or electronically, or from harassing the applicant in any other way.
2 If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period. This period may be extended on one occasion for good cause. 3 Where justified by the circumstances, the court may: - 1.
- require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling; or
- 2.
- with the landlord’s consent, transfer the rights and obligations under the lease to the applicant alone.
3bis It shall give notice of its decision to the competent child and adult protection authorities, the competent cantonal authority under paragraph 4 and other authorities and third parties, provided this appears necessary in order to fulfil its responsibilities or for the protection of the applicant, or enables the decision to be enforced.34 4 The cantons shall designate an authority which in urgent cases may order the immediate expulsion of the offending party from the joint dwelling and shall enact rules governing the procedure. 33 Inserted by No I of the FA of 16 Dec. 1983 (AS 1984 778; BBl 1982 II 636). Amended by No I of the FA of 23 June 2006 (Protection of the Personality against Violence, Threats and Harassment), in force since 1 July 2007 (AS2007 137; BBl 2005 68716897). 34 Inserted by No I 1 of the FA of 14 Dec. 2018 on Improving the Protection given to Victims of Violence, in force since 1 July 2020 (AS 2019 2273; BBl 2017 7307).
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Art. 28c35
c. Electronic monitoring
1 The court that issues an injunction pursuant to the provision on violence, threats or harassment, and the enforcement court, may on the applicant's request order the use of an electronic device that is securely attached to the offending party and which can continuously ascertain and record his or her location. 2 The measure may be ordered for a maximum of six months. It may be extended by a maximum of six months at a time. As a precautionary measure, the measure may be ordered for a maximum period of six months. 3 The cantons shall designate an authority that is responsible for enforcing the measure, and shall regulate the enforcement procedure. They shall ensure that the data recorded on the persons concerned are used only to enforce the injunction and are deleted twelve months at the latest after termination of the measure. 4 The applicant must not incur any costs from the enforcement of the measure. The person monitored may be charged the costs of the measure.
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Art. 28g38
4. Right of reply
a. Principle
1 Any person whose personality rights are directly affected by a representation of events in periodically appearing media, especially the press, radio or television, shall have a right of reply. 2 There is no right of reply in respect of accurate reports of the public dealings of an authority in which the affected person took part.
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Art. 28h39
1 The text of the reply must be succinct and confine itself to the subject matter of the contentious representation. 2 The reply may be refused if it is plainly incorrect or violates the law or public morals.
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Art. 28i40
1 The author of the reply must send the text to the media company within 20 days of learning of the contentious representation, but at the latest within three months of publication. 2 The media company must immediately inform the author of the reply when it will be published or why it is rejected.
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Art. 28k41
1 The reply must be published as soon as possible and in such a manner as to ensure that it reaches the same audience or readership as the contentious representation. 2 The reply must be identified as such; the media company is not permitted to make any addition except to state whether it stands by its representation or to indicate its sources. 3 The reply must be published free of charge.
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Art. 28l42
e. Recourse to the courts
1 If the media company obstructs the right of reply, rejects the reply or fails to publish it correctly, the party in question may petition the court. 2 ...43 3 and 4 ...44 42Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636). 43 Repealed by Annex No 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829). 44 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
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Art. 29
III. Right to use one’s name
1. Protection of one’s name
1 If a person’s use of his or her name is disputed, he or she may apply for a court declaration confirming his rights. 2 If a person is adversely affected because another person is using his or her name, he or she may seek an order prohibiting such use and, if the user is at fault, may bring a claim for damages and, where justified by the nature of the infringement, for satisfaction.
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Art. 30
2. Change of name
a. General
1 The government of the canton of residence may permit a person to change his or her name for good cause.46 2 ...47 3 A person adversely affected by a change of name may contest the same in court within one year of learning thereof.
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Art. 30a48
b. On the death of a spouse
A person whose spouse dies may, if that person changed his or her surname on marriage, at any time declare before the civil registrar the wish to revert to the name by which he or she was known prior to the marriage.
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Art. 30b49
IV. In relation to gender
1 Any person who is firmly convinced that they are not of the gender entered in their respect in the civil register may declare to the civil registrar that they wish to have the entry changed. 2 The person making the declaration may have one or more new first names entered in the civil register. 3 The declaration has no legal effect on family relationships. 4 The consent of the legal representative is required if: - 1.
- the person making the declaration is under the age of 16;
- 2.
- the person making the declaration is subject to a general deputyship; or
- 3.
- the adult protection authority has so ordered.
49 Inserted by No I of the FA of 18 Dec. 2020 (Gender Change in the Civil Register), in force since 1 Jan. 2022 (AS 2021 668; BBl 2020 799).
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Art. 31
C. Beginning and end of personality rights
I. Birth and death
1 Personality rights begin on the birth of the living child and end on death. 2 An unborn child has legal capacity provided that it survives birth.
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Art. 32
II. Proof
1. Burden of proof
1 Any person who, in exercising a right, relies on the fact that another person is living or has died or was alive at a particular time or survived another person must produce evidence thereof. 2 If it cannot be proved that, of a group of several deceased persons, one survived another, all are deemed to have died at the same time.
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Art. 33
2. Evidence
a. In general
1 Proof of the birth or death of a person is established by the records kept by the civil register. 2 If records are missing or shown to be incorrect, proof may be adduced in another form.
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Art. 34
b. Presumption of death
The death of a person is deemed proven, even if no-one has seen the corpse, if that person has disappeared in circumstances in which his death may be considered certain.
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Art. 35
III. Declaration of presumed death
1. In general
1 If it is highly probable that a person is dead because he or she has disappeared in extremely life-threatening circumstances or has been missing for a lengthy period without any sign of life, the court may declare that person presumed dead on application by any person deriving rights from his or her death. 2 ...50 50 Repealed by Annex No 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
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Art. 36
1 The application may be made when at least one year has elapsed since the life-threatening event or five years have elapsed since the last sign of life. 2 The court must, by suitable public means, call on any person who may provide information about the missing person to come forward within a specified period. 3 The period shall run for at least one year following the first public notice.
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Art. 37
3. Failure of application
If the missing person comes forward within the set period or if news of the missing person is received or if the date of his or her death is proved, the application fails.
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Art. 38
1 If no news is received during the set period, the missing person is declared presumed dead and rights derived from the fact of his or her death may be enforced as if death were proven. 2 The declaration of presumed death has retroactive effect from the time of the life-threatening event or the last sign of life. 3 A declaration of presumed death dissolves a marriage.51
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