¹ No­tice of ter­min­a­tion may be chal­lenged where it con­tra­venes the prin­ciple of good faith.

² On re­quest, reas­ons for giv­ing no­tice must be stated.

¹ No­tice of ter­min­a­tion served by the land­lord may be chal­lenged in par­tic­u­lar where it is giv­en:

a.

be­cause the ten­ant is as­sert­ing claims arising un­der the lease in good faith;

b.

be­cause the land­lord wishes to im­pose a uni­lat­er­al amend­ment of the lease to the ten­ant’s det­ri­ment or to change the rent;

c.

for the sole pur­pose of in­du­cing the ten­ant to pur­chase the leased premises;

d.

dur­ing con­cili­ation or court pro­ceed­ings in con­nec­tion with the lease, un­less the ten­ant ini­ti­ated such pro­ceed­ings in bad faith;

e.

with­in three years of the con­clu­sion of con­cili­ation or court pro­ceed­ings in con­nec­tion with the lease in which the land­lord:

1.

was largely un­suc­cess­ful,

2.

with­drew or con­sid­er­ably re­duced his claim or ac­tion,

3.

de­clined to bring the mat­ter be­fore the court,

4.

reached a set­tle­ment or some oth­er com­prom­ise with the ten­ant;

f.

be­cause of changes in the ten­ant’s fam­ily cir­cum­stances which do not give rise to any sig­ni­fic­ant dis­ad­vant­age to the land­lord.

²Para­graph 1 let. e. is also ap­plic­able where the ten­ant can pro­duce doc­u­ments show­ing that he reached a set­tle­ment with the land­lord con­cern­ing a claim in con­nec­tion with the lease out­side con­cili­ation or court pro­ceed­ings.

³ Para­graph 1 let. d. and e. are not ap­plic­able where no­tice of ter­min­a­tion is giv­en:

a.

be­cause the land­lord ur­gently needs the prop­erty for his own use or that of fam­ily mem­bers or in-laws;

b.

be­cause the ten­ant is in de­fault on his pay­ments (Art. 257d);

c.

be­cause the ten­ant is in ser­i­ous breach of his duty of care and con­sid­er­a­tion (Art. 257f para. 3 and 4);

d.

as a res­ult of ali­en­a­tion of the leased premises (Art. 261);

e.

for good cause (Art. 266g);

f.

be­cause the ten­ant is bank­rupt (Art. 266h).

¹ The ten­ant may re­quest the ex­ten­sion of a fixed-term or open-ended lease where ter­min­a­tion of the lease would cause a de­gree of hard­ship for him or his fam­ily that can­not be jus­ti­fied by the in­terests of the land­lord.

² When weigh­ing the re­spect­ive in­terests, the com­pet­ent au­thor­ity has par­tic­u­lar re­gard to:

a.

the cir­cum­stances in which the lease was con­trac­ted and the terms of the lease;

b.

the dur­a­tion of the lease;

c.

the per­son­al, fam­ily and fin­an­cial cir­cum­stances of the parties, as well as their con­duct;

d.

any need that the land­lord might have to use the premises for him­self, his fam­ily mem­bers or his in-laws and the ur­gency of such need;

e.

the con­di­tions pre­vail­ing on the loc­al mar­ket for res­id­en­tial and com­mer­cial premises.

³ Where the ten­ant re­quests a second ex­ten­sion, the com­pet­ent au­thor­ity must also con­sider wheth­er the ten­ant has done everything that might reas­on­ably be ex­pec­ted of him to mit­ig­ate the hard­ship caused by the no­tice of ter­min­a­tion.

¹ No ex­ten­sion is gran­ted where no­tice of ter­min­a­tion is giv­en:

a.

be­cause the ten­ant is in de­fault on his pay­ments (Art. 257d);

b.

be­cause the ten­ant is in ser­i­ous breach of his duty of care and con­sid­er­a­tion (Art. 257f para. 3 and 4);

c.

be­cause the ten­ant is bank­rupt (Art. 266h);

d.

in re­spect of a lease ex­pressly con­cluded for a lim­ited peri­od un­til re­fur­bish­ment or de­moli­tion works be­gin or the re­quis­ite plan­ning per­mis­sion is ob­tained.

² As a gen­er­al rule, no ex­ten­sion is gran­ted where the land­lord of­fers the ten­ant equi­val­ent res­id­en­tial or com­mer­cial premises.

¹ A lease may be ex­ten­ded by up to four years in the case of res­id­en­tial premises and by up to six years for com­mer­cial premises. With­in these over­all lim­its, one or two ex­ten­sions may be gran­ted.

² Where the parties agree to an ex­ten­sion of the lease, they are not bound by a max­im­um dur­a­tion and the ten­ant may waive a second ex­ten­sion.

¹ Either party may ask the court to modi­fy the lease in line with changed cir­cum­stances when de­cid­ing on the lease ex­ten­sion.

² Where the lease is not var­ied in the de­cision on the lease ex­ten­sion, it re­mains in force dur­ing the ex­ten­sion peri­od, sub­ject to oth­er means of vari­ation en­vis­aged by law.

Un­less the de­cision on ex­ten­sion or the ex­ten­sion agree­ment stip­u­lates oth­er­wise, the ten­ant may ter­min­ate the lease:

a.

by giv­ing one month’s no­tice ex­pir­ing at the end of a cal­en­dar month in cases where the ex­ten­sion does not ex­ceed one year;

b.

by giv­ing three months’ no­tice ex­pir­ing on an ad­miss­ible ter­min­a­tion date in cases where the ex­ten­sion ex­ceeds one year.

¹ A party wish­ing to chal­lenge ter­min­a­tion must bring the mat­ter be­fore the con­cili­ation au­thor­ity with­in 30 days of re­ceiv­ing the no­tice of ter­min­a­tion.

² A ten­ant wish­ing to ap­ply for a lease ex­ten­sion must sub­mit his re­quest to the con­cili­ation au­thor­ity:

a.

with­in 30 days of re­ceiv­ing the no­tice of ter­min­a­tion, where the lease is open-ended;

b.

not later than 60 days be­fore ex­piry of the lease, where it is of lim­ited dur­a­tion.

³ A ten­ant re­quest­ing a second ex­ten­sion must sub­mit his re­quest to the con­cili­ation au­thor­ity not later than 60 days be­fore ex­piry of the first ex­ten­sion.

⁴ The pro­ced­ure be­fore the con­cili­ation au­thor­ity is gov­erned by the CPO¹⁰³.¹⁰⁴

⁵ Where the com­pet­ent au­thor­ity re­jects a re­quest made by the ten­ant re­lat­ing to chal­len­ging ter­min­a­tion, it must ex­am­ine ex of­fi­cio wheth­er the lease may be ex­ten­ded.¹⁰⁵

¹ Where the leased prop­erty serves as the fam­ily res­id­ence, the ten­ant’s spouse is like­wise en­titled to chal­lenge the ter­min­a­tion, re­quest a lease ex­ten­sion and ex­er­cise the oth­er rights ac­cru­ing to the ten­ant in the event that no­tice of ter­min­a­tion is served.

² Agree­ments provid­ing for an ex­ten­sion of the lease are val­id only if con­cluded with both spouses.

³ The same pro­vi­sions ap­ply mu­tatis mutandis to re­gistered part­ners.¹⁰⁶

¹ The pro­vi­sions of this Chapter ap­ply to sub-leases provided the prin­cip­al lease has not been ter­min­ated. A sub-lease may be ex­ten­ded only with­in the dur­a­tion of the prin­cip­al lease.

² Where the main pur­pose of the sub-lease is to cir­cum­vent the pro­vi­sions gov­ern­ing pro­tec­tion against ter­min­a­tion, the sub-ten­ant is gran­ted such pro­tec­tion without re­gard to the prin­cip­al lease. If the prin­cip­al lease is ter­min­ated, the land­lord is sub­rog­ated to the rights of the ten­ant in his con­tract with the sub-ten­ant.

¹ The ten­ant may waive the rights con­ferred on him by the pro­vi­sions of this Chapter only where this is ex­pressly en­vis­aged.

² All agree­ments to the con­trary are void.

The usu­fructu­ary lease is a con­tract whereby the lessor un­der­takes to grant the less­ee the use of a pro­duct­ive ob­ject or right and the be­ne­fit of its fruits or pro­ceeds in ex­change for rent.

The pro­vi­sions gov­ern­ing usu­fructu­ary leases of res­id­en­tial and com­mer­cial premises also ap­ply to ob­jects made avail­able to­geth­er with such premises for the use and en­joy­ment of the ten­ant.

¹ Usu­fructu­ary leases re­lat­ing to ag­ri­cul­tur­al en­ter­prises or to ag­ri­cul­tur­al land and build­ings are gov­erned by the Fed­er­al Act of 4 Oc­to­ber 1985¹⁰⁹ on Ag­ri­cul­tur­al Leases,in­so­far as it con­tains spe­cial pro­vi­sions.

² In oth­er re­spects the Code of Ob­lig­a­tions ap­plies with the ex­cep­tion of the pro­vi­sions gov­ern­ing leases of res­id­en­tial and com­mer­cial premises.¹¹⁰

Where ma­chinery, live­stock or sup­plies are in­cluded in the lease, each party must fur­nish the oth­er with a pre­cise, signed in­vent­ory and take part in a joint valu­ation there­of.

¹ The lessor is re­quired to make the ob­ject avail­able on the agreed date in a con­di­tion fit for its des­ig­nated use and op­er­a­tion.

² If a re­port was drawn up on the re­turn of the ob­ject at the end of the pre­vi­ous lease, on re­quest the lessor must make this doc­u­ment avail­able for in­spec­tion by the new less­ee when the ob­ject is handed over to him.

³ Sim­il­arly, the new less­ee has the right to be in­formed of the amount of rent paid un­der the pre­vi­ous lease.

The lessor is ob­liged to carry out ma­jor re­pairs to the ob­ject that be­come ne­ces­sary dur­ing the lease at his own ex­pense and as soon as the less­ee has in­formed him of the need for such re­pairs.

The lessor bears all taxes and charges in con­nec­tion with the ob­ject.

¹ The less­ee must pay the rent and, where ap­plic­able, the ac­cess­ory charges at the end of each year of the lease but not later than when the lease ex­pires, save where an­oth­er pay­ment date is stip­u­lated by agree­ment or loc­al cus­tom.

² Art­icle 257a ap­plies to ac­cess­ory charges.

¹ Where, hav­ing ac­cep­ted the prop­erty, the less­ee is in ar­rears with pay­ments of rent or ac­cess­ory charges, the lessor may set a time lim­it of at least 60 days for pay­ment and no­ti­fy him that in the event of non-pay­ment the lessor will ter­min­ate the lease on ex­piry of that time lim­it.

² In the event of non-pay­ment with­in the time lim­it the lessor may ter­min­ate the usu­fructu­ary lease with im­me­di­ate ef­fect or, for leases of res­id­en­tial and com­mer­cial premises, sub­ject to at least 30 days’ no­tice end­ing on the last day of a cal­en­dar month.

¹ The less­ee must use the leased ob­ject with due care in ac­cord­ance with its in­ten­ded use and in par­tic­u­lar must en­sure that its long-term pro­ductiv­ity is sus­tained.

² Where the usu­fructu­ary lease relates to im­mov­able prop­erty, the ten­ant must show due con­sid­er­a­tion for oth­ers who share the build­ing and for neigh­bours.

¹ The less­ee must carry out the nor­mal main­ten­ance of the leased ob­ject.

² In ac­cord­ance with loc­al cus­tom, he must carry out minor re­pairs and re­place in­ex­pens­ive equip­ment and tools which have be­come use­less as a res­ult of age or wear and tear.

¹ If, des­pite writ­ten warn­ing from the lessor, the less­ee con­tin­ues to act in breach of his duty of care, con­sid­er­a­tion or main­ten­ance such that con­tinu­ation of the usu­fructu­ary lease be­comes un­con­scion­able for the lessor or oth­er per­sons shar­ing the build­ing, the lessor may ter­min­ate the lease with im­me­di­ate ef­fect or, for leases of res­id­en­tial and com­mer­cial premises, sub­ject to at least 30 days’ no­tice end­ing on the last day of a cal­en­dar month.

² However, leases of res­id­en­tial and com­mer­cial premises may be ter­min­ated with im­me­di­ate ef­fect if the ten­ant in­ten­tion­ally causes ser­i­ous dam­age to the prop­erty.

¹ If ma­jor re­pairs be­come ne­ces­sary or a third party makes claims against the ob­ject of the usu­fructu­ary lease, the less­ee must in­form the lessor im­me­di­ately.

² Fail­ure to no­ti­fy renders the less­ee li­able for any dam­age in­curred by the lessor as a res­ult.

¹ The less­ee must tol­er­ate ma­jor re­pairs in­ten­ded to rem­edy de­fects in the ob­ject or to re­pair or pre­vent dam­age.

² The less­ee must per­mit the lessor to in­spect the ob­ject to the ex­tent re­quired for main­ten­ance, sale or fu­ture leas­ing.

³ The lessor must in­form the less­ee of works and in­spec­tions in good time and take all due ac­count of the lat­ter’s in­terests when they are car­ried out; the pro­vi­sions on leases in Title 8 (Art. 259d and 259e) ap­ply mu­tatis mutandis to all claims of the less­ee for re­duc­tion of the rent and for dam­ages.

¹ The pro­vi­sions on leases in Title 8 (Art. 258 and 259a–259i) ap­ply mu­tatis mutandis:

a.

where the lessor fails to hand over the prop­erty on the agreed date or hands it over in a de­fect­ive con­di­tion;

b.

where de­fects arise in the ob­ject which are not at­trib­ut­able to the less­ee and which he is not ob­liged to rem­edy at his own ex­pense, or where he is pre­ven­ted from us­ing the ob­ject as con­trac­tu­ally agreed.

² Clauses to the con­trary to the det­ri­ment of the less­ee are void if they are set out:

a.

in pre­vi­ously for­mu­lated gen­er­al terms and con­di­tions;

b.

in usu­fructu­ary leases for res­id­en­tial or com­mer­cial premises.

¹ The lessor may ren­ov­ate or modi­fy the ob­ject only where con­scion­able for the less­ee and the usu­fructu­ary lease has not been ter­min­ated.

² In car­ry­ing out such works, the lessor must give due con­sid­er­a­tion to the less­ee’s in­terests; the pro­vi­sions on leases in Title 8 (Art. 259d and Art. 259e) ap­ply mu­tatis mutandis to any claims of the less­ee for re­duc­tion of the rent and for dam­ages.

¹ The less­ee re­quires the lessor’s writ­ten con­sent in or­der to:

a.

al­ter the man­ner in which the ob­ject has tra­di­tion­ally been man­aged in ways which will have last­ing sig­ni­fic­ance bey­ond the dur­a­tion of the lease;

b.

carry out renov­a­tions or modi­fic­a­tions to the ob­ject above and bey­ond the re­mit of nor­mal main­ten­ance.

² Once such con­sent has been giv­en, the lessor may re­quire the res­tor­a­tion of the ob­ject to its pre­vi­ous con­di­tion only if this has been agreed in writ­ing.

³ Where the lessor has not giv­en his writ­ten con­sent to an al­ter­a­tion with­in the mean­ing of para­graph 1 let. a. and the less­ee has failed to re­verse such al­ter­a­tion with­in an ap­pro­pri­ate time, the lessor may ter­min­ate the con­tract with im­me­di­ate ef­fect or, for leases of res­id­en­tial and com­mer­cial premises, sub­ject to at least 30 days’ no­tice ex­pir­ing on the last day of a cal­en­dar month.

The pro­vi­sions on leases in Title 8 (Art. 261–261b) ap­ply mu­tatis mutandis:

a.

where the leased ob­ject is ali­en­ated;

b.

where lim­ited rights in rem are es­tab­lished on the leased ob­ject;

c.

where the lease is entered un­der pri­or­ity no­tice in the land re­gister.

¹ The less­ee may sub-let all or part of the leased ob­ject with the lessor’s con­sent.

² The lessor may re­fuse his con­sent to the sub-let­ting of premises which form part of a leased prop­erty only if:

a.

the less­ee re­fuses to in­form him of the terms of the sub-lease;

b.

the terms and con­di­tions of the sub-lease are un­fair in com­par­is­on with those of the usu­fructu­ary lease;

c.

the sub-let­ting gives rise to ma­jor dis­ad­vant­ages for the lessor.

³ The less­ee is li­able to the lessor for en­sur­ing that the sub-ten­ant or sub-less­ee uses the ob­ject only in the man­ner per­mit­ted to the less­ee him­self. To this end the lessor may is­sue re­mind­ers dir­ectly to the sub-ten­ant or sub-less­ee.

Art­icle 263 ap­plies mu­tatis mutandis to the trans­fer of a usu­fructu­ary lease of com­mer­cial premises to a third party.

¹ Where the less­ee re­turns the ob­ject without ob­serving the no­tice peri­od or the dead­line for ter­min­a­tion, he is re­leased from his ob­lig­a­tions to­wards the lessor only if he pro­poses a new less­ee who is ac­cept­able to the lessor, solvent and will­ing to take on the lease on the same terms and con­di­tions.

² Oth­er­wise, the less­ee must con­tin­ue to pay the rent un­til such time as the lease ends or may be ter­min­ated un­der the con­tract or by law.

³ Against the rent ow­ing to him the lessor must per­mit the fol­low­ing to be brought in­to ac­count:

a.

any ex­penses he has saved, and

b.

any earn­ings which he has ob­tained, or in­ten­tion­ally failed to ob­tain, from put­ting the ob­ject to some oth­er use.

Art­icle 265 ap­plies mu­tatis mutandis to the set-off of claims arising from a usu­fructu­ary lease.

¹ Where the parties have ex­pressly or ta­citly agreed to a lim­ited dur­a­tion, the usu­fructu­ary lease comes to an end on ex­piry there­of without any need for no­tice to be giv­en.

² If the usu­fructu­ary lease is ta­citly con­tin­ued, it is deemed to have been ex­ten­ded on the same terms and con­di­tions for a fur­ther year un­less oth­er­wise agreed.

³ A party may ter­min­ate the ex­ten­ded usu­fructu­ary lease by giv­ing the leg­ally pre­scribed peri­od of no­tice ex­pir­ing at the end of a lease year.

¹ The parties may ter­min­ate an open-ended usu­fructu­ary lease by giv­ing six months’ no­tice ex­pir­ing on any date of their choos­ing un­less oth­er­wise stip­u­lated by agree­ment or loc­al cus­tom and un­less the nature of the leased ob­ject im­plies that the parties in­ten­ded oth­er­wise.

² The parties may ter­min­ate an open-ended usu­fructu­ary lease of res­id­en­tial or com­mer­cial premises by giv­ing at least six months’ no­tice ex­pir­ing on a date fixed by loc­al cus­tom or, ab­sent in the ab­sence of such cus­tom, at the end of a three-month lease peri­od. The parties may agree a longer no­tice peri­od or an­oth­er ter­min­a­tion date.

³ Where the pre­scribed no­tice peri­od or ter­min­a­tion date is not ob­served, ter­min­a­tion will be ef­fect­ive as of the next ter­min­a­tion date.

¹ Where per­form­ance of the con­tract be­comes un­con­scion­able for the parties for good cause, they may ter­min­ate the usu­fructu­ary lease by giv­ing the leg­ally pre­scribed no­tice ex­pir­ing at any time.

² The court de­term­ines the fin­an­cial con­sequences of early ter­min­a­tion, tak­ing due ac­count of all the cir­cum­stances.

¹ Where the less­ee be­comes bank­rupt after tak­ing pos­ses­sion of the prop­erty, the lease ends on com­mence­ment of bank­ruptcy pro­ceed­ings.

² However, where the lessor has re­ceived suf­fi­cient se­cur­ity for the cur­rent year’s rent and the in­vent­ory, he must con­tin­ue the lease un­til the end of the lease year.

In the event of the death of the less­ee, his heirs and the lessor may ter­min­ate the con­tract by giv­ing the leg­ally pre­scribed no­tice ex­pir­ing on the next ad­miss­ible ter­min­a­tion date.

¹ No­tice to ter­min­ate usu­fructu­ary leases of res­id­en­tial or com­mer­cial premises must be giv­en in writ­ing.

² The lessor must give no­tice of ter­min­a­tion us­ing a form ap­proved by the can­ton which in­forms the less­ee how he must pro­ceed if he wishes to con­test the ter­min­a­tion or ap­ply for an ex­ten­sion of the lease.

³ No­tice to ter­min­ate is void if it does not ful­fil the above re­quire­ments.

¹ At the end of the usu­fructu­ary lease, the less­ee must re­turn the ob­ject to­geth­er with all items lis­ted in the in­vent­ory in the con­di­tion they are in at that time.

² He is en­titled to com­pens­a­tion for im­prove­ments which res­ult:

a.

from en­deav­ours ex­ceed­ing the nor­mal de­gree of di­li­gence due in man­aging the ob­ject;

b.

for renov­a­tions or modi­fic­a­tions to which the lessor gave his writ­ten con­sent.

³ He must com­pensate the lessor for any de­teri­or­a­tion that could have been pre­ven­ted by di­li­gent man­age­ment of the ob­ject.

⁴ Any agree­ment whereby the less­ee un­der­takes to pay com­pens­a­tion on ter­min­a­tion of the lease is void ex­cept in­so­far as such com­pens­a­tion relates to pos­sible dam­age.

¹ When the ob­ject is re­turned, the lessor must in­spect its con­di­tion and im­me­di­ately in­form the less­ee of any de­fects for which he is an­swer­able.

² If the lessor fails to do so, he for­feits his claims save in re­spect of de­fects not de­tect­able on cus­tom­ary in­spec­tion.

³ Where the lessor dis­cov­ers such de­fects sub­sequently, he must in­form the less­ee im­me­di­ately.

¹ Where items lis­ted in the in­vent­ory were val­ued when the ob­ject was ori­gin­ally handed over to the less­ee, he must re­turn an in­vent­ory of items of the same type and es­tim­ated value or pay com­pens­a­tion for any re­duc­tion in value.

² The less­ee is not ob­liged to pay com­pens­a­tion for miss­ing items if he can prove that they were lost through the fault of the lessor or force ma­jeure.

³ The less­ee is en­titled to com­pens­a­tion for ad­ded value res­ult­ing from his out­lays and his la­bour.

The lessor of com­mer­cial premises has the same right of li­en in re­spect of the rent for the past year and the cur­rent year of a usu­fructu­ary lease as the land­lord un­der the pro­vi­sions gov­ern­ing leases and rent­al agree­ments (Art. 268 et seq.).

¹ The pro­vi­sions on leases in Title 8 (Art. 271–273c) ap­ply mu­tatis mutandis to pro­tec­tion against ter­min­a­tion of usu­fructu­ary leases of res­id­en­tial or com­mer­cial premises.

² The pro­vi­sions gov­ern­ing the fam­ily res­id­ence (Art. 273a) are not ap­plic­able.

The pro­ced­ure is gov­erned by the CPO¹¹².

¹ In re­spect of a lease of live­stock which is not part of an ag­ri­cul­tur­al ten­ancy, all be­ne­fits arising from leased live­stock be­long to the ten­ant farm­er un­less oth­er­wise provided by agree­ment or loc­al cus­tom.

² The ten­ant farm­er feeds and cares for the live­stock and pays rent to the lessor in the form of either money or a share in the be­ne­fits in kind.

¹ Un­less oth­er­wise provided by agree­ment or loc­al cus­tom, the ten­ant farm­er is li­able for dam­age to the leased live­stock un­less he can prove that such dam­age could not have been avoided even with all due care and at­ten­tion.

² The ten­ant farm­er is en­titled to have any ex­traordin­ary costs of caring for the live­stock re­im­bursed by the lessor un­less the ten­ant farm­er was at fault in in­cur­ring such costs.

³ The ten­ant farm­er must in­form the lessor as soon as pos­sible of ser­i­ous ac­ci­dents or ill­ness.

¹ Where the lease is open-ended, either party may ter­min­ate it as of any date of their choos­ing, un­less oth­er­wise provided by agree­ment or loc­al cus­tom.

² However, such ter­min­a­tion must take place in good faith and not at an in­op­por­tune junc­ture.

A loan for use is a con­tract whereby the lender un­der­takes to make an ob­ject avail­able free of charge to the bor­row­er for the lat­ter’s use and the bor­row­er un­der­takes to re­turn it to him after hav­ing made use of it.

¹ The bor­row­er may make use of the loaned ob­ject only for the pur­pose stip­u­lated in the con­tract or, in the ab­sence of any stip­u­la­tion, for its nor­mal pur­pose or the pur­pose dic­tated by its nature.

² He is not en­titled to grant use of the ob­ject to a third party.

³ A bor­row­er act­ing in breach of these pro­vi­sions is li­able even for ac­ci­dent­al dam­age un­less he can prove that the ob­ject would have been af­fected in any event.

¹ The bor­row­er bears the or­din­ary costs of main­ten­ance and, in the case of loaned an­im­als, in par­tic­u­lar the costs of feed­ing them.

² He is en­titled to re­im­burse­ment of ex­traordin­ary ex­penses he has been ob­liged to in­cur for the lender’s be­ne­fit.

Per­sons who have jointly bor­rowed a single ob­ject are jointly and sev­er­ally li­able for it.

¹ Where the loan for use is open-ended, it ends as soon as the bor­row­er has made use of the ob­ject as agreed or on ex­piry of the peri­od in which such use could have been made of it.

² The lender is en­titled to re­claim the ob­ject be­fore that time if the bor­row­er uses it for a pur­pose con­trary to the agree­ment, if he dam­ages it, if he per­mits a third party to use it or if un­fore­seen de­vel­op­ments oc­cur which leave the lender in ur­gent need of the ob­ject.

Where the con­tract stip­u­lates neither the pur­pose nor the dur­a­tion of the loan, the lender may re­claim the loaned ob­ject whenev­er he sees fit.

The loan for use ends on the death of the bor­row­er.

A fixed-term loan is a con­tract whereby the lender un­der­takes to trans­fer the own­er­ship of a sum of money or of oth­er fun­gible goods to the bor­row­er, who in re­turn un­der­takes to re­turn ob­jects of the same quant­ity and qual­ity to him.

¹ In nor­mal deal­ings, in­terest is pay­able on a fixed-term loan only where this has spe­cific­ally been agreed.

² In com­mer­cial trans­ac­tions, in­terest is pay­able on fixed-term loans even where this has not been ex­pressly agreed.

¹ Where the in­terest rate is not stip­u­lated in the con­tract, it is pre­sumed to be the cus­tom­ary rate for loans of the same type at the time and place that the fixed-term loan was re­ceived.

² Un­less oth­er­wise agreed, the prom­ised in­terest is pay­able an­nu­ally.

³ Any pri­or agree­ment that in­terest will be ad­ded to the loan prin­cip­al and be­come sub­ject to fur­ther in­terest is void, sub­ject to stand­ard busi­ness prac­tices and in par­tic­u­lar those of sav­ings banks for cal­cu­lat­ing in­terest on cur­rent ac­counts and sim­il­ar com­mer­cial in­stru­ments un­der which the cal­cu­la­tion of com­pound in­terest is cus­tom­ary.

The bor­row­er’s claim for de­liv­ery and the lender’s claim for ac­cept­ance of the fixed-term loan pre­scribe six months after the date on which the oth­er party de­faults.

¹ The lender may re­fuse to hand over the fixed-term loan if the bor­row­er be­comes in­solv­ent after en­ter­ing in­to the con­tract.

² The lender has the right to re­fuse de­liv­ery even if in­solv­ency oc­curred be­fore the con­tract was con­cluded but he only sub­sequently be­came aware of it.

¹ Where the bor­row­er re­ceives se­cur­it­ies or goods rather than the agreed sum of money, the amount of the fixed-term loan is deemed to be the cur­rent or mar­ket price of the se­cur­it­ies or goods con­cerned at the time and place of de­liv­ery.

² Any agree­ment to the con­trary is void.

Where a fixed-term loan con­tract does not stip­u­late the re­pay­ment date or the peri­od of no­tice to ter­min­ate the con­tract or the ex­piry of the con­tract at any time on first re­quest, the bor­row­er must re­pay the loan with­in six weeks of the first re­quest by the lender.

¹ By means of an in­di­vidu­al em­ploy­ment con­tract, the em­ploy­ee un­der­takes to work in the ser­vice of the em­ploy­er for a lim­ited or un­lim­ited peri­od and the em­ploy­er un­der­takes to pay him a salary based on the amount of time he works (time wage) or the tasks he per­forms (piece work).

² A con­tract whereby an em­ploy­ee un­der­takes to work reg­u­larly in the em­ploy­er’s ser­vice by hours, half-days or days (part-time work) is like­wise deemed to be an in­di­vidu­al em­ploy­ment con­tract.

¹ Ex­cept where the law provides oth­er­wise, the in­di­vidu­al em­ploy­ment con­tract is not sub­ject to any spe­cif­ic form­al re­quire­ment.

² It is deemed to have been con­cluded where the em­ploy­er ac­cepts the per­form­ance of work over a cer­tain peri­od in his ser­vice which in the cir­cum­stances could reas­on­ably be ex­pec­ted only in ex­change for salary.

³ Where an em­ploy­ee per­forms work in good faith for the em­ploy­er un­der a con­tract which is sub­sequently found to be in­val­id, both parties must dis­charge their ob­lig­a­tions un­der the em­ploy­ment re­la­tion­ship as if the con­tract had been val­id un­til such time as one party ter­min­ates the re­la­tion­ship on grounds of the in­valid­ity of the con­tract.

The em­ploy­ee must carry out the con­trac­tu­ally as­sumed tasks in per­son, un­less oth­er­wise re­quired by agree­ment or the cir­cum­stances.

¹ The em­ploy­ee must carry out the work as­signed to him with due care and loy­ally safe­guard the em­ploy­er’s le­git­im­ate in­terests.

² He must use the em­ploy­er’s ma­chinery, work tools, tech­nic­al equip­ment, in­stall­a­tions and vehicles in the ap­pro­pri­ate man­ner and treat them and all ma­ter­i­als placed at his dis­pos­al for the per­form­ance of his work with due care.

³ For the dur­a­tion of the em­ploy­ment re­la­tion­ship the em­ploy­ee must not per­form any paid work for third parties in breach of his duty of loy­alty, in par­tic­u­lar if such work is in com­pet­i­tion with his em­ploy­er.

⁴ For the dur­a­tion of the em­ploy­ment re­la­tion­ship the em­ploy­ee must not ex­ploit or re­veal con­fid­en­tial in­form­a­tion ob­tained while in the em­ploy­er’s ser­vice, such as man­u­fac­tur­ing or trade secrets; he re­mains bound by such duty of con­fid­en­ti­al­ity even after the end of the em­ploy­ment re­la­tion­ship to the ex­tent re­quired to safe­guard the em­ploy­er’s le­git­im­ate in­terests.

¹ The em­ploy­ee is ac­count­able to his em­ploy­er for everything, and in par­tic­u­lar sums of money, he re­ceives from third parties in the per­form­ance of his con­trac­tu­al activ­it­ies and must hand it over to the em­ploy­er im­me­di­ately.

² He must like­wise im­me­di­ately hand over to the em­ploy­er all work pro­duced in the course of his con­trac­tu­al activ­it­ies.

¹ If more hours of work are re­quired than en­vis­aged un­der the em­ploy­ment con­tract or provided for by cus­tom, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the em­ploy­ee is ob­liged to per­form such over­time to the ex­tent that he is able and may con­scion­ably be ex­pec­ted to do so.

² In con­sulta­tion with the em­ploy­ee, the em­ploy­er may com­pensate him with­in an ap­pro­pri­ate peri­od for the over­time worked by grant­ing him time off in lieu of at least equal length.

³ Where the over­time is not com­pensated by time off in lieu and un­less oth­er­wise agreed in writ­ing or un­der a stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the em­ploy­er must com­pensate the em­ploy­ee for the over­time worked by pay­ing him his nor­mal salary and a sup­ple­ment of at least one-quarter there­of.

¹ The em­ploy­er is en­titled to is­sue gen­er­al dir­ect­ives and spe­cif­ic in­struc­tions re­gard­ing the per­form­ance of the work and the con­duct of em­ploy­ees in his busi­ness or house­hold.

² The em­ploy­ee must com­ply in good faith with the em­ploy­er’s gen­er­al dir­ect­ives and spe­cif­ic in­struc­tions.

¹ The em­ploy­ee is li­able for any dam­age he causes to the em­ploy­er wheth­er wil­fully or by neg­li­gence.

² The ex­tent of the duty of care owed by the em­ploy­ee is de­term­ined by the in­di­vidu­al em­ploy­ment con­tract, tak­ing due ac­count of the oc­cu­pa­tion­al risk, level of train­ing and tech­nic­al know­ledge as­so­ci­ated with the work as well as the em­ploy­ee’s aptitudes and skills of which the em­ploy­er was or should have been aware.

¹ The em­ploy­er must pay the agreed or cus­tom­ary salary or the salary that is fixed by stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract.

² Where the em­ploy­ee lives in the em­ploy­er’s house­hold, his board and lodgings are part of the salary un­less agree­ment or cus­tom provide oth­er­wise.

¹ Where the em­ploy­ee is by con­tract en­titled to a share in the profits, the turnover or the res­ults of the busi­ness ex­pressed in some oth­er man­ner, such share is cal­cu­lated on the basis of the res­ults for the fin­an­cial year as defined by stat­utory pro­vi­sion and gen­er­ally re­cog­nised com­mer­cial prin­ciples.

² The em­ploy­er must fur­nish all the ne­ces­sary in­form­a­tion to the em­ploy­ee or, in his stead, to an ex­pert des­ig­nated by both em­ploy­er and em­ploy­ee or ap­poin­ted by the court and must grant the em­ploy­ee or the ex­pert such ac­cess to the ac­counts as is re­quired for veri­fic­a­tion of the busi­ness res­ults.

³ In ad­di­tion, where a share in the profits of the busi­ness has been agreed, a copy of the profit and loss ac­count must be made avail­able to the em­ploy­ee on re­quest.¹¹⁴

¹ Where the em­ploy­ee is by con­tract en­titled to com­mis­sion on par­tic­u­lar trans­ac­tions, his en­ti­tle­ment is es­tab­lished as soon as the trans­ac­tion with the third party enters in­to force.

² In the case of trans­ac­tions in­volving per­form­ance in in­stal­ments and in­sur­ance policies, it may be agreed in writ­ing that such en­ti­tle­ment arises as each in­stal­ment falls due or is per­formed.

³ The en­ti­tle­ment to com­mis­sion lapses sub­sequently if through no fault of his the em­ploy­er fails to carry out the trans­ac­tion or the third party fails to ful­fil his ob­lig­a­tions; in the event of only par­tial per­form­ance, the com­mis­sion is re­duced pro­por­tion­ately.

¹ Where the terms of the con­tract do not re­quire the em­ploy­ee to draw up a state­ment of com­mis­sion due to him, on each date on which com­mis­sion falls due, the em­ploy­er must provide him with a writ­ten state­ment in­clud­ing a break­down of the trans­ac­tions on which it is pay­able.

² The em­ploy­er must fur­nish all the ne­ces­sary in­form­a­tion to the em­ploy­ee or, in his stead, to an ex­pert des­ig­nated by both em­ploy­er and em­ploy­ee or ap­poin­ted by the court, and must grant the em­ploy­ee or the ex­pert such ac­cess to the books of ac­count or sup­port­ing doc­u­ments as is re­quired for veri­fic­a­tion of the com­mis­sion state­ment.

¹ Where the em­ploy­er pays a bo­nus over and above the salary on par­tic­u­lar oc­ca­sions, such as at Christ­mas or the end of the fin­an­cial year, the em­ploy­ee is en­titled to such bo­nus where it is con­trac­tu­ally stip­u­lated.

² If the em­ploy­ment re­la­tion­ship ends pri­or to the oc­ca­sion on which the bo­nus is paid, the em­ploy­ee is en­titled to a pro rata bo­nus where the con­tract so provides.

¹ Un­less short­er peri­ods or oth­er pay­ment terms have been agreed or are cus­tom­ary and un­less oth­er­wise provided by stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the salary is paid to the em­ploy­ee at the end of each month.

² Un­less a short­er pay­ment peri­od has been agreed or is cus­tom­ary, com­mis­sion is paid at the end of each month; however, where ex­e­cu­tion of a trans­ac­tion takes more than half a year, the due date of the com­mis­sion pay­able on it may be de­ferred by writ­ten agree­ment.

³ Shares in busi­ness res­ults are pay­able as soon as the res­ults are de­term­ined, but not later than six months after the end of the fin­an­cial year.

⁴ If an em­ploy­ee is in hard­ship and re­quests an ad­vance against salary due for work already per­formed, the em­ploy­er must ad­vance such sum as may reas­on­ably be ex­pec­ted of him.

¹ To the ex­tent provided for by in­di­vidu­al agree­ment, cus­tom, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the em­ploy­er may with­hold part of the salary.

² The amount with­held on any giv­en pay­ment date must not ex­ceed one-tenth of the salary due and the cu­mu­lat­ive amount with­held must not ex­ceed the salary due for one week’s work; however, a high­er amount may be with­held un­der the terms of a stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract.

³ Un­less oth­er­wise provided by in­di­vidu­al agree­ment, cus­tom, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the salary with­held is deemed to be se­cur­ity for the em­ploy­er’s claims arising from the em­ploy­ment re­la­tion­ship rather than a con­trac­tu­al pen­alty.

¹ Un­less oth­er­wise provided by agree­ment or cus­tom, the salary must be paid to the em­ploy­ee in leg­al tender dur­ing work­ing hours; a writ­ten salary state­ment must be provided to the em­ploy­ee.

² Where the em­ploy­er holds claims against the em­ploy­ee, he may set them off against the em­ploy­ee’s salary claim only to the ex­tent that such salary claim is sub­ject to at­tach­ment, al­though claims for com­pens­a­tion of in­ten­tion­al dam­age may be set off without re­stric­tion.

³ Any agree­ment whereby the salary must be used for the em­ploy­er’s be­ne­fit is void.

¹ Where the em­ploy­er is at fault in pre­vent­ing per­form­ance of the work or fails to ac­cept its per­form­ance for oth­er reas­ons, he re­mains ob­liged to pay the salary but the em­ploy­ee is not ob­liged to make up the time thus lost.

² The salary pay­able in this event is re­duced by any amounts that the em­ploy­ee saved as a res­ult of be­ing pre­ven­ted from work­ing or that he earned by per­form­ing oth­er work or would have earned had he not in­ten­tion­ally fore­gone such work.

¹ Where the em­ploy­ee is pre­ven­ted from work­ing by per­son­al cir­cum­stances for which he is not at fault, such as ill­ness, ac­ci­dent, leg­al ob­lig­a­tions or pub­lic du­ties, the em­ploy­er must pay him his salary for a lim­ited time, in­clud­ing fair com­pens­a­tion for lost be­ne­fits in kind, provided the em­ploy­ment re­la­tion­ship has las­ted or was con­cluded for longer than three months.

² Sub­ject to longer peri­ods be­ing fixed by in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the em­ploy­er must pay three weeks’ salary dur­ing the first year of ser­vice and there­after the salary for ap­pro­pri­ately longer peri­ods de­pend­ing on the dur­a­tion of the em­ploy­ment re­la­tion­ship and the par­tic­u­lar cir­cum­stances.

³ The em­ploy­er has the same ob­lig­a­tion in the event that an em­ploy­ee be­comes preg­nant.¹¹⁵

⁴ A writ­ten agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract may derog­ate from the above pro­vi­sions provided it gives the em­ploy­ee terms of at least equi­val­ent be­ne­fit.

¹ If the em­ploy­ee has com­puls­ory in­sur­ance pre­scribed by law against the fin­an­cial con­sequences of be­ing pre­ven­ted from work­ing by per­son­al cir­cum­stances for which he is not at fault, the em­ploy­er is not ob­liged to pay his salary where the in­sur­ance be­ne­fits for that lim­ited peri­od cov­er at least four-fifths of the salary in­come lost over that peri­od.

² Where the in­sur­ance be­ne­fits are less, the em­ploy­er must pay the dif­fer­ence between them and four-fifths of the salary.

³ Where the in­sur­ance be­ne­fits are paid only after a wait­ing peri­od, the em­ploy­er must pay at least four-fifths of the salary dur­ing that peri­od.¹¹⁶

¹ The em­ploy­ee may as­sign or pledge his fu­ture salary claims as se­cur­ity for main­ten­ance or sup­port ob­lig­a­tions un­der fam­ily law only to the ex­tent that such claims are sub­ject to at­tach­ment; at the re­quest of an in­ter­ested party the debt col­lec­tion of­fice at the em­ploy­ee’s dom­i­cile de­term­ines the amount that is not sub­ject to at­tach­ment in ac­cord­ance with Art­icle 93 of the Fed­er­al Act of 11 April 1889¹¹⁸ on Debt Col­lec­tion and Bank­ruptcy.

² Any as­sign­ment or pledge of fu­ture salary claims as se­cur­ity for oth­er ob­lig­a­tions is void.

¹ Where by con­tract the em­ploy­ee car­ries out piece work for a single em­ploy­er, the lat­ter must al­loc­ate a suf­fi­cient quant­ity of work to him.

² The em­ploy­er may al­loc­ate time work to the em­ploy­ee where through no fault of his own the em­ploy­er is un­able to al­loc­ate piece work as con­trac­tu­ally agreed or where time work is tem­por­ar­ily re­quired for op­er­a­tion­al reas­ons.

³ If the rate of pay for such time work is not fixed by in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract, the em­ploy­er must pay the em­ploy­ee the av­er­age salary he pre­vi­ously earned on a piece work basis.

⁴ An em­ploy­er who is un­able to al­loc­ate suf­fi­cient piece work or time work re­mains non­ethe­less ob­liged pur­su­ant to the pro­vi­sions gov­ern­ing fail­ure to ac­cept per­form­ance to pay the salary that he would have paid for time work.

¹ Where by con­tract the em­ploy­ee car­ries out piece work, the em­ploy­er must in­form him of the ap­plic­able rate of pay be­fore the start of each task.

² Should the em­ploy­er fail to give such in­form­a­tion, he must pay the go­ing rate for identic­al or com­par­able work.

¹ Un­less oth­er­wise provided by agree­ment or cus­tom, the em­ploy­er provides the em­ploy­ee with the tools and ma­ter­i­als that the work re­quires.

² Where the em­ploy­ee him­self sup­plies such tools or ma­ter­i­als with the em­ploy­er’s con­sent, he is en­titled to ap­pro­pri­ate com­pens­a­tion un­less oth­er­wise provided by agree­ment or cus­tom.

¹ The em­ploy­er must re­im­burse the em­ploy­ee for all ex­penses ne­ces­sar­ily in­curred in the per­form­ance of the work and, in the case of work done off the em­ploy­er’s premises, for his ne­ces­sary liv­ing ex­penses.

² An in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract may provide that such ex­penses be re­im­bursed in the form of a fixed sum, such as a per diem or a weekly or monthly al­low­ance, provided that this cov­ers all ne­ces­sary ex­penses.

³ Any agree­ment whereby the em­ploy­ee must bear all or part of such ne­ces­sary ex­penses is void.

¹ Where with the em­ploy­er’s con­sent the em­ploy­ee uses his own mo­tor vehicle or a vehicle sup­plied by the em­ploy­er for busi­ness pur­poses, he is en­titled to re­im­burse­ment of the nor­mal run­ning and main­ten­ance costs in­curred in the per­form­ance of his work.

² Where with the em­ploy­er’s con­sent the em­ploy­ee uses his own mo­tor vehicle for work pur­poses, the em­ploy­ee is also en­titled to re­im­burse­ment of the tax on the vehicle and the premi­ums for third-party li­ab­il­ity in­sur­ance as well as ap­pro­pri­ate com­pens­a­tion for wear and tear, to the ex­tent that the vehicle is used for busi­ness pur­poses.

³ ...¹¹⁹

¹ Ex­penses are re­im­bursed when the salary is paid based on the state­ment of ex­penses sub­mit­ted by the em­ploy­ee, un­less a short­er peri­od has been agreed or is cus­tom­ary.

² Where an em­ploy­ee reg­u­larly in­curs ex­penses in the per­form­ance of his con­trac­tu­al ob­lig­a­tions, the em­ploy­er must pay him an ad­vance against such ex­penses at reg­u­lar in­ter­vals but not less fre­quently than every month.

¹ With­in the em­ploy­ment re­la­tion­ship, the em­ploy­er must ac­know­ledge and safe­guard the em­ploy­ee’s per­son­al­ity rights, have due re­gard for his health and en­sure that prop­er mor­al stand­ards are main­tained. In par­tic­u­lar, he must en­sure that em­ploy­ees are not sexu­ally har­assed and that any vic­tim of sexu­al har­ass­ment suf­fers no fur­ther ad­verse con­sequences.¹²⁰

² In or­der to safe­guard the per­son­al safety, health and in­teg­rity of his em­ploy­ees he must take all meas­ures that are shown by ex­per­i­ence to be ne­ces­sary, that are feas­ible us­ing the latest tech­no­logy and that are ap­pro­pri­ate to the par­tic­u­lar cir­cum­stances of the work­place or the house­hold, provided such meas­ures may reas­on­ably be ex­pec­ted of him in the light of each spe­cif­ic em­ploy­ment re­la­tion­ship and the nature of the work.^{121 122}

¹ Where the em­ploy­ee lives in the em­ploy­er’s house­hold, the em­ploy­er must provide ad­equate board and ap­pro­pri­ate lodgings.

² If the em­ploy­ee is pre­ven­ted from work­ing through no fault of his own by sick­ness or ac­ci­dent, the em­ploy­er must provide care and med­ic­al as­sist­ance for a lim­ited peri­od, this be­ing three weeks with­in the first year of ser­vice and there­after for ap­pro­pri­ately longer peri­ods de­pend­ing on the dur­a­tion of the em­ploy­ment re­la­tion­ship and the par­tic­u­lar cir­cum­stances.

³ The em­ploy­er has the same ob­lig­a­tions in the event that an em­ploy­ee is preg­nant or gives birth.

The em­ploy­er may handle data con­cern­ing the em­ploy­ee only to the ex­tent that such data con­cern the em­ploy­ee’s suit­ab­il­ity for his job or are ne­ces­sary for the per­form­ance of the em­ploy­ment con­tract. In all oth­er re­spects, the pro­vi­sions of the Data Pro­tec­tion Act of 25 Septem­ber 2020¹²⁴ ap­ply.¹²⁵

¹ The em­ploy­er must al­low the em­ploy­ee one day off per week, gen­er­ally Sunday or, where cir­cum­stances do not per­mit this, a full week­day in­stead.

² In spe­cial cir­cum­stances, he may al­low the em­ploy­ee sev­er­al days off to­geth­er or two half-days in­stead of one full day, provided the em­ploy­ee con­sents to this.

³ In ad­di­tion, he must al­low the em­ploy­ee the cus­tom­ary hours and days off work and, once no­tice has been giv­en to ter­min­ate the em­ploy­ment re­la­tion­ship, the time re­quired to seek oth­er em­ploy­ment.

⁴ When de­term­in­ing time off work, due ac­count is to be taken of the in­terests of both em­ploy­er and em­ploy­ee.

¹ The em­ploy­er must al­low the em­ploy­ee dur­ing each year of ser­vice at least four weeks’ hol­i­day and five weeks’ hol­i­day for em­ploy­ees un­der the age of 20.¹²⁷

² ...¹²⁸

³ Where an em­ploy­ee has not yet com­pleted one year’s ser­vice, his hol­i­day en­ti­tle­ment is fixed pro rata.

¹ Where in a giv­en year of ser­vice the em­ploy­ee through his own fault is pre­ven­ted from work­ing for more than a month in total, the em­ploy­er may re­duce his hol­i­day en­ti­tle­ment by one-twelfth for each full month of ab­sence.¹²⁹

² Where the total ab­sence does not ex­ceed one month in a giv­en year of ser­vice and is the res­ult of per­son­al cir­cum­stances for which the em­ploy­ee is not at fault, such as ill­ness, ac­ci­dent, leg­al ob­lig­a­tions, pub­lic du­ties or leave for youth work, the em­ploy­er is not en­titled to re­duce his hol­i­day en­ti­tle­ment.¹³⁰

³ The em­ploy­er may not re­duce the hol­i­day en­ti­tle­ment of:

a.

a fe­male em­ploy­ee who is pre­ven­ted from work­ing by preg­nancy for up to two months;

b.

a fe­male em­ploy­ee who has taken ma­ter­nity leave in ac­cord­ance with Art­icle 329f;

c.¹³¹

an em­ploy­ee who has taken par­ent­al leave in ac­cord­ance with Art­icle 329g or leave in the event of the moth­er’s death in ac­cord­ance with Art­icle 329g^bis;

d.

an em­ploy­ee who has taken carer’s leave in ac­cord­ance with Art­icle 329i,

e.¹³²

an em­ploy­ee who has taken adoption leave in accordance with Article 329j.¹³³

⁴ A stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract may derog­ate from para­graphs 2 and 3 provided that, taken as a whole, it gives em­ploy­ees terms of at least equal be­ne­fit.¹³⁴

¹ The hol­i­day en­ti­tle­ment for a giv­en year of ser­vice is gen­er­ally gran­ted dur­ing that year; at least two weeks of hol­i­day must be taken con­sec­ut­ively.¹³⁵

² The em­ploy­er de­term­ines the tim­ing of hol­i­days tak­ing due ac­count of the em­ploy­ee’s wishes to the ex­tent these are com­pat­ible with the in­terests of the busi­ness or house­hold.

¹ The em­ploy­er must pay the em­ploy­ee the full salary due for the hol­i­day en­ti­tle­ment and fair com­pens­a­tion for any lost be­ne­fits in kind.

² Dur­ing the em­ploy­ment re­la­tion­ship, the hol­i­day en­ti­tle­ment may not be re­placed by mon­et­ary pay­ments or oth­er be­ne­fits.

³ If while on hol­i­day, the em­ploy­ee car­ries out paid work for a third party which harms the em­ploy­er’s le­git­im­ate in­terests, the em­ploy­er may re­fuse to pay the salary due for the hol­i­days con­cerned and may re­claim any salary already paid.

¹ Dur­ing each year of ser­vice the em­ploy­er must grant em­ploy­ees un­der the age of 30 leave of up to one work­ing week for the pur­pose of car­ry­ing out un­paid lead­er­ship, care or ad­vis­ory activ­it­ies in con­nec­tion with ex­tra­cur­ricular youth work for cul­tur­al or so­cial or­gan­isa­tions and for re­lated ini­tial and on­go­ing train­ing.

² The em­ploy­ee has no salary en­ti­tle­ment dur­ing such leave for youth work. An in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract may provide oth­er­wise to the em­ploy­ee’s be­ne­fit.

³ The em­ploy­er and em­ploy­ee should agree on the tim­ing and dur­a­tion of leave for youth work, hav­ing due re­gard for each oth­er’s in­terests. Where they can­not reach agree­ment, such leave must be gran­ted on con­di­tion that the em­ploy­ee gives two months’ ad­vance no­tice of his in­ten­tion to ex­er­cise his right. Any leave for youth work not taken by the end of the cal­en­dar year is for­feited.

⁴ At the em­ploy­er’s re­quest, the em­ploy­ee must fur­nish proof of the activ­it­ies and func­tions he has car­ried out in re­la­tion to youth work.

¹ After hav­ing giv­en birth, a fe­male em­ploy­ee is en­titled to ma­ter­nity leave of at least 14 weeks.

² In the event of the hos­pit­al­isa­tion of the new-born child, the ma­ter­nity leave shall be ex­ten­ded by the ex­ten­ded peri­od of pay­ment the ma­ter­nity al­low­ance.¹³⁸

³ In the event of the death of the oth­er par­ent dur­ing the six months fol­low­ing the birth of the child, a fe­male em­ploy­ee is en­titled to two ad­di­tion­al weeks of leave; she may take this leave in full weeks or on a day-to-day basis with­in a peri­od of six months from the day after the death.¹³⁹

¹ The fol­low­ing per­sons are en­titled to par­ent­al leave of two weeks:

a.

an em­ploy­ee who is leg­ally the fath­er at the time of the birth of a child or who be­comes the leg­al fath­er with­in the fol­low­ing six months;

b.

a fe­male em­ploy­ee who is leg­ally the oth­er par­ent at the time of the birth of the child.

² Par­ent­al leave must be taken with­in six months of the birth of the child. This peri­od is sus­pen­ded dur­ing leave in ac­cord­ance with Art­icle 329g^bis.

³ The leave may be taken in full weeks or on a day-to-day basis.

¹ If the moth­er dies on the day of the birth or dur­ing the 14 weeks there­after, the oth­er par­ent is en­titled to leave of 14 weeks; this leave must be taken on con­sec­ut­ive days from the date of the death.

² The oth­er par­ent is en­titled to the leave if the re­la­tion­ship with the child is es­tab­lished on the date of death or dur­ing the 14 weeks there­after.

³ In the event of the hos­pit­al­isa­tion of the new-born child in ac­cord­ance with Art­icle 329f para­graph 2, leave in ac­cord­ance with para­graph 1 shall be ex­ten­ded by the dur­a­tion of the hos­pit­al­isa­tion, up to a max­im­um of eight weeks.

An em­ploy­ee is en­titled to paid leave for the time he or she spends caring for a fam­ily mem­ber or life part­ner with health prob­lems; however, the leave is lim­ited to no more than three days per event and no more than ten days per year.

¹ If an em­ploy­ee is en­titled to carer’s al­low­ance un­der Art­icles 16n–16s of the Loss of Earn­ing Com­pens­a­tion Act (LE­CA) of 25 Septem­ber 1952¹⁴⁴ be­cause his or her child’s health has been ser­i­ously im­paired by ill­ness or ac­ci­dent, he or she is en­titled to carer’s leave of a max­im­um of 14 weeks.

² The carer’s leave must be taken with­in a peri­od of 18 months. The peri­od be­gins on the day for which the first daily al­low­ance is claimed.

³ If both par­ents are in em­ploy­ment, each par­ent is en­titled to carer’s leave of a max­im­um of sev­en weeks. They may choose to ap­por­tion the leave in a dif­fer­ent way.

⁴ The leave may be taken in one stretch or on a day-to-day basis.

⁵ The em­ploy­er must be in­formed im­me­di­ately about the ar­range­ments made for tak­ing the leave and about any changes to these ar­range­ments.

¹ If an em­ploy­ee ad­opts a child, he or she shall be en­titled to ad­op­tion leave of two weeks provided the re­quire­ments of Art­icle 16t LE­CA¹⁴⁶ are met.

² The ad­op­tion leave must be taken with­in one year of ad­opt­ing the child.

³ It may be taken by one par­ent or shared between both par­ents. Both par­ents may not take their share of leave at the same time.

⁴ It may be taken in full weeks or on a day-to-day basis.

¹ Where the em­ploy­ee fur­nishes se­cur­ity for per­form­ance of his ob­lig­a­tions un­der the em­ploy­ment con­tract, the em­ploy­er must keep it sep­ar­ate from his own as­sets and guar­an­tee its safe­keep­ing.

² The em­ploy­er re­turns such se­cur­ity at the latest at the end of the em­ploy­ment re­la­tion­ship un­less the date of its re­turn has been de­ferred by writ­ten agree­ment.

³ Where the em­ploy­er as­serts claims arising from the em­ploy­ment re­la­tion­ship and these are con­tested, he may re­tain the se­cur­ity un­til they are re­solved but must at the em­ploy­ee’s re­quest de­pos­it any re­tained se­cur­ity with the court.

⁴ In the event of the em­ploy­er’s bank­ruptcy, the em­ploy­ee may de­mand the re­turn of the se­cur­ity kept sep­ar­ate from the em­ploy­er’s own as­sets, sub­ject to any claims of the lat­ter arising from the em­ploy­ment re­la­tion­ship.

¹ The em­ploy­ee may at any time re­quest from the em­ploy­er a ref­er­ence con­cern­ing the nature and the dur­a­tion of the em­ploy­ment re­la­tion­ship, the qual­ity of his work and his con­duct.

² At the em­ploy­ee’s ex­press re­quest the ref­er­ence must be lim­ited to the nature and dur­a­tion of the em­ploy­ment re­la­tion­ship.

¹ Where the em­ploy­ment con­tract has been con­cluded for an in­def­in­ite dur­a­tion or for longer than one month, with­in one month of the be­gin­ning of the em­ploy­ment re­la­tion­ship, the em­ploy­er must in­form the em­ploy­ee in writ­ing of:

a.

the names of the con­tract­ing parties;

b.

the date of the be­gin­ning of the em­ploy­ment re­la­tion­ship;

c.

the em­ploy­ee’s func­tion;

d.

the salary and any ad­di­tion­al be­ne­fits;

e.

the length of the work­ing week.

² In the event of changes to the con­trac­tu­al ele­ments that are sub­ject to the duty of in­form­a­tion pur­su­ant to para­graph 1 dur­ing the em­ploy­ment re­la­tion­ship, the em­ploy­ee must be in­formed of such changes in writ­ing with­in one month of their entry in­to force.

¹ Where the em­ploy­er con­trib­utes to a em­ploy­ee be­ne­fits scheme¹⁴⁹ or the em­ploy­ees make their own con­tri­bu­tions, the em­ploy­er must trans­fer these con­tri­bu­tions to a found­a­tion, a co­oper­at­ive or a pub­lic law in­sti­tu­tion.

² Where the em­ploy­er’s con­tri­bu­tions and any made by the em­ploy­ee are used to take out health in­sur­ance, per­son­al ac­ci­dent in­sur­ance, life as­sur­ance, dis­ab­il­ity in­sur­ance or whole life as­sur­ance in fa­vour of the em­ploy­ee with a reg­u­lated in­sur­ance com­pany or a re­cog­nised health in­sur­ance fund, the em­ploy­er is not ob­liged to trans­fer the con­tri­bu­tions as stip­u­lated in the pre­vi­ous para­graph if an in­de­pend­ent claim against the in­surer would ac­crue to the em­ploy­ee on the oc­cur­rence of the event in­sured against.

³ Where the em­ploy­ee is ob­liged to make con­tri­bu­tions to a be­ne­fits scheme, the em­ploy­er must sim­ul­tan­eously con­trib­ute an amount at least equal to the total con­tri­bu­tions of all his em­ploy­ees; he must fin­ance his con­tri­bu­tions from his own funds or from con­tri­bu­tion re­serves held by the fund which have pre­vi­ously been ac­cu­mu­lated by the em­ploy­er for this pur­pose and are shown sep­ar­ately in the fund’s ac­counts. The em­ploy­er must trans­fer the con­tri­bu­tion de­duc­ted from the em­ploy­ee’s salary to­geth­er with his own con­tri­bu­tion to the be­ne­fits scheme not later than at the end of the first month fol­low­ing the cal­en­dar year or in­sur­ance year for which the con­tri­bu­tions are due.¹⁵⁰

⁴ The em­ploy­er must fur­nish the em­ploy­ee with the ne­ces­sary in­form­a­tion re­gard­ing his rights and en­ti­tle­ments against a be­ne­fits scheme or an in­surer.¹⁵¹

⁵ At the re­quest of the cent­ral of­fice for ‘Pil­lar 2’ (oc­cu­pa­tion­al pen­sion) in­sur­ance, the em­ploy­er must sup­ply any in­form­a­tion avail­able to him that might fa­cil­it­ate the loc­a­tion of per­sons en­titled to dormant as­sets or of the in­sti­tu­tions that man­age such as­sets.¹⁵²

¹ Be­ne­fits cov­er com­mences on the date on which the em­ploy­ment re­la­tion­ship be­gins and ends on the date on which the em­ploy­ee leaves the be­ne­fits scheme.

² However, he con­tin­ues to en­joy life as­sur­ance and in­valid­ity cov­er un­til he joins a new oc­cu­pa­tion­al be­ne­fits scheme, sub­ject to a max­im­um peri­od of one month.

³ The be­ne­fits scheme may re­quire the in­sured to pay premi­ums for pen­sion in­sur­ance main­tained after the end of the oc­cu­pa­tion­al be­ne­fits

Claims for fu­ture be­ne­fits may not be val­idly as­signed or pledged be­fore they fall due.

Oc­cu­pa­tion­al be­ne­fits schemes may make re­ser­va­tions on med­ic­al grounds in re­la­tion to in­valid­ity and life policies. Such re­ser­va­tions may be made for a max­im­um of five years.

¹ At any time up to three years be­fore be­com­ing en­titled to draw re­tire­ment be­ne­fits, the em­ploy­ee may pledge his en­ti­tle­ment to oc­cu­pa­tion­al be­ne­fits or an amount up to the lim­it of his trans­fer­able be­ne­fits for the pur­pose of ac­quir­ing a prop­erty for his own per­son­al use.

² The pledge is also per­mit­ted for the pur­pose of ac­quir­ing shares in a hous­ing co­oper­at­ive or sim­il­ar par­ti­cip­at­ory ven­ture provided a res­id­en­tial unit jointly fin­anced in this man­ner is for the em­ploy­ee’s own per­son­al use.

³ The pledge is val­id only if no­ti­fied in writ­ing to the be­ne­fits scheme.

⁴ The amount pledged by em­ploy­ees aged 50 or older must not ex­ceed the trans­fer­able be­ne­fit en­ti­tle­ment they would have had at 50 or one-half of their trans­fer­able be­ne­fit en­ti­tle­ment at the time the pledge is giv­en.

⁵ Mar­ried em­ploy­ees may pledge be­ne­fits only with the writ­ten con­sent of their spouse. Where the em­ploy­ee can­not ob­tain such con­sent or if it is with­held, the em­ploy­ee may ap­ply to the civil courts.¹⁵⁷ The same ap­plies to re­gistered part­ner­ships.¹⁵⁸

⁶ Where the pledge is real­ised be­fore the be­ne­fits fall due or the cash pay­ment is made, Art­icles 30d, 30e, 30g and Art­icle 83a of the Fed­er­al Act of 25 June 1982¹⁵⁹ on Oc­cu­pa­tion­al Old Age, Sur­viv­ors' and In­valid­ity Pen­sion Pro­vi­sion are ap­plic­able.¹⁶⁰

⁷ The Fed­er­al Coun­cil de­term­ines:

a.

the pur­poses for which the pledge is per­miss­ible and the defin­i­tion of ‘own per­son­al use’;

b.

the con­di­tions to be ful­filled for the pledging of en­ti­tle­ments to ac­quire shares in a hous­ing co­oper­at­ive or sim­il­ar par­ti­cip­at­ory ven­ture.

¹ At any time up to three years be­fore be­com­ing en­titled to draw re­tire­ment be­ne­fits, the em­ploy­ee may claim an amount from his be­ne­fits scheme for the pur­pose of ac­quir­ing a prop­erty for his own per­son­al use.

² Em­ploy­ees un­der the age of 50 may with­draw an amount up to the lim­it of their trans­fer­able be­ne­fits. Em­ploy­ees aged 50 or older are en­titled to with­draw no more than the trans­fer­able be­ne­fit en­ti­tle­ment they would have had at 50 or one-half of their trans­fer­able be­ne­fit en­ti­tle­ment at the time of the early with­draw­al.

³ The em­ploy­ee may also use such amount for the pur­pose of ac­quir­ing shares in a hous­ing co­oper­at­ive or sim­il­ar par­ti­cip­at­ory ven­ture provided a res­id­en­tial unit jointly fin­anced in this man­ner is for the em­ploy­ee’s own per­son­al use.

⁴ The early with­draw­al brings about an im­me­di­ate re­duc­tion in oc­cu­pa­tion­al be­ne­fit en­ti­tle­ments in ac­cord­ance with the be­ne­fits scheme reg­u­la­tions and the ac­tu­ar­ial basis em­ployed by the be­ne­fits scheme. In or­der to avoid a short­fall in be­ne­fits cov­er res­ult­ing from this re­duc­tion in be­ne­fits in the event of death or dis­ab­il­ity, the be­ne­fits scheme of­fers sup­ple­ment­ary in­sur­ance either dir­ectly or as broker for a third-party in­surer.

⁵ Mar­ried em­ploy­ees may make such an early with­draw­al and any sub­sequent es­tab­lish­ment of a charge on im­mov­able prop­erty only with the writ­ten con­sent of their spouse. Where the em­ploy­ee can­not ob­tain such con­sent or if it is with­held, the em­ploy­ee may ap­ply to the civil courts. The same ap­plies to re­gistered part­ner­ships.¹⁶²

⁶ Where mar­ried per­sons di­vorce be­fore the be­ne­fits fall due, the early with­draw­al is deemed a trans­fer­able be­ne­fit and is di­vided in ac­cord­ance with Art­icle 123 of the Civil Code¹⁶³, Art­icles 280 and 281 CPO¹⁶⁴ and Art­icles 22–22b of the Ves­ted Be­ne­fits Act of 17 Decem­ber 1993¹⁶⁵. The same ap­plies in the event of ju­di­cial dis­sol­u­tion of a re­gistered part­ner­ship.¹⁶⁶

⁷ If the early with­draw­al or pledge of en­ti­tle­ments jeop­ard­ises the li­quid­ity of the be­ne­fits scheme, the fund may de­fer ex­e­cu­tion of the re­quests con­cerned. The be­ne­fits scheme must lay down in its reg­u­la­tions the or­der of pri­or­ity in which early with­draw­als or pledges of en­ti­tle­ments will be de­ferred in such an event. The Fed­er­al Coun­cil reg­u­lates the de­tails.

⁸ In oth­er re­spects Art­icles 30d, 30e, 30g and Art­icle 83a of the Fed­er­al Act of 25 June 1982¹⁶⁷ on Oc­cu­pa­tion­al Old Age, Sur­viv­ors' and In­valid­ity Pen­sion Pro­vi­sion are ap­plic­able.¹⁶⁸

¹ The be­ne­fits scheme may provide in its reg­u­la­tions that the pledges of as­sign­ments, early with­draw­als and re­pay­ments may be sub­ject to time or volume re­stric­tions or even re­fused while the fund has a cov­er de­fi­cit.

² The Fed­er­al Coun­cil de­term­ines the con­di­tions un­der which the re­stric­tions stip­u­lated in para­graph 1 are per­miss­ible and the scope there­of.

¹ In­ven­tions and designs pro­duced by the em­ploy­ee alone or in col­lab­or­a­tion with oth­ers in the course of his work for the em­ploy­er and in per­form­ance of his con­trac­tu­al ob­lig­a­tions be­long to the em­ploy­er, wheth­er or not they may be pro­tec­ted.

² By writ­ten agree­ment, the em­ploy­er may re­serve the right to ac­quire in­ven­tions and designs pro­duced by the em­ploy­ee in the course of his work for the em­ploy­er but not in per­form­ance of his con­trac­tu­al ob­lig­a­tions.

³ An em­ploy­ee who pro­duces an in­ven­tion or design covered by para­graph 2 must no­ti­fy the em­ploy­er there­of in writ­ing; the em­ploy­er must in­form the em­ploy­ee with­in six months if he wishes to ac­quire the in­ven­tion or design or re­lease it to the em­ploy­ee.

⁴ Where it is not re­leased to the em­ploy­ee, the em­ploy­er must pay him sep­ar­ate, ap­pro­pri­ate re­mu­ner­a­tion to be de­term­ined with due re­gard to all per­tin­ent cir­cum­stances and in par­tic­u­lar the eco­nom­ic value of the in­ven­tion or design, the de­gree to which the em­ploy­er con­trib­uted, any re­li­ance on oth­er staff and on the em­ploy­er’s fa­cil­it­ies, the ex­penses in­curred by the em­ploy­ee and his po­s­i­tion in the com­pany.

¹ Where the em­ploy­er trans­fers the com­pany or a part there­of to a third party, the em­ploy­ment re­la­tion­ship and all at­tend­ant rights and ob­lig­a­tions pass to the ac­quirer as of the day of the trans­fer, un­less the em­ploy­ee re­fuses such trans­fer.¹⁷³

^1bis Where the trans­ferred re­la­tion­ship is gov­erned by a col­lect­ive em­ploy­ment con­tract, the ac­quirer is ob­liged to abide by it for one year un­less it ex­pires or is ter­min­ated soon­er.¹⁷⁴

² In the event that the em­ploy­ee re­fuses the trans­fer, the em­ploy­ment re­la­tion­ship ends on ex­piry of the stat­utory no­tice peri­od; un­til then, the ac­quirer and the em­ploy­ee are ob­liged to per­form the con­tract.

³ The former em­ploy­er and the ac­quirer are jointly and sev­er­ally li­able for any claims of an em­ploy­ee which fell due pri­or to the trans­fer or which fall due between that junc­ture and the date on which the em­ploy­ment re­la­tion­ship could nor­mally be ter­min­ated or is ter­min­ated fol­low­ing re­fus­al of the trans­fer.

⁴ Moreover, the em­ploy­er may not trans­fer the rights arising from an em­ploy­ment re­la­tion­ship to a third party un­less oth­er­wise agreed or dic­tated by the cir­cum­stances.

¹ Where the em­ploy­er trans­fers the com­pany or a part there­of to a third party, he must in­form the or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, the em­ploy­ees them­selves in good time be­fore the trans­fer takes place of:

a.

the reas­on for the trans­fer;

b.

its leg­al, eco­nom­ic and so­cial con­sequences for the em­ploy­ees.

² Where meas­ures af­fect­ing the em­ploy­ees are en­vis­aged as a res­ult of such trans­fer, the or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, the em­ploy­ees them­selves must be con­sul­ted in good time be­fore the rel­ev­ant de­cisions are taken.

If the com­pany or part there­of is trans­ferred dur­ing a debt re­struc­tur­ing morator­i­um, in the course of bank­ruptcy pro­ceed­ings or un­der a com­pos­i­tion agree­ment with as­sign­ment of as­sets, the em­ploy­ment re­la­tion­ship with all rights and ob­lig­a­tions is trans­ferred to the ac­quirer if this has been agreed with the ac­quirer and the em­ploy­ee does not ob­ject to the trans­fer. In ad­di­tion, Art­icle 333, with the ex­cep­tion of its para­graph 3, and 333a ap­ply mu­tatis mutandis.

¹ A fixed-term em­ploy­ment re­la­tion­ship ends without no­tice.

² A fixed-term em­ploy­ment re­la­tion­ship ta­citly ex­ten­ded bey­ond the agreed dur­a­tion is deemed to be an open-ended em­ploy­ment re­la­tion­ship.

³ After ten years, any em­ploy­ment re­la­tion­ship con­trac­ted for a longer dur­a­tion may be ter­min­ated by either party by giv­ing six months’ no­tice ex­pir­ing at the end of a month.

¹ An em­ploy­ment re­la­tion­ship for an un­lim­ited peri­od may be ter­min­ated by either party.

² The party giv­ing no­tice of ter­min­a­tion must state his reas­ons in writ­ing if the oth­er party so re­quests.

¹ No­tice peri­ods must be the same for both parties; where an agree­ment provides for dif­fer­ent no­tice peri­ods, the longer peri­od is ap­plic­able to both parties.

² However, where the em­ploy­er has giv­en no­tice to ter­min­ate the em­ploy­ment re­la­tion­ship or ex­pressed an in­ten­tion to do so for eco­nom­ic reas­ons, the em­ploy­ee may be per­mit­ted a short­er no­tice peri­od by in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract.

¹ Dur­ing the pro­ba­tion peri­od, either party may ter­min­ate the con­tract at any time by giv­ing sev­en days’ no­tice; the pro­ba­tion peri­od is con­sidered to be the first month of an em­ploy­ment re­la­tion­ship.

² Dif­fer­ent terms may be en­vis­aged by an in­di­vidu­al writ­ten agree­ment, a stand­ard em­ploy­ment con­tract or a col­lect­ive em­ploy­ment con­tract; however, the pro­ba­tion peri­od may not ex­ceed three months.

³ Where the peri­od that would nor­mally con­sti­tute the pro­ba­tion peri­od is in­ter­rup­ted by ill­ness, ac­ci­dent or per­form­ance of a non-vol­un­tary leg­al ob­lig­a­tion, the pro­ba­tion peri­od is ex­ten­ded ac­cord­ingly.

¹ The em­ploy­ment re­la­tion­ship may be ter­min­ated at one month’s no­tice dur­ing the first year of ser­vice, at two months’ no­tice in the second to ninth years of ser­vice and at three months’ no­tice there­after, all such no­tice to ex­pire at the end of a cal­en­dar month.

² These no­tice peri­ods may be var­ied by writ­ten in­di­vidu­al, stand­ard or col­lect­ive em­ploy­ment con­tract; however, they may be re­duced to less than one month only by col­lect­ive em­ploy­ment con­tract and only for the first year of ser­vice.

³ If the em­ploy­er ter­min­ates the em­ploy­ment re­la­tion­ship and if the em­ploy­ee is en­titled to par­ent­al leave in ac­cord­ance with Art­icle 329gbe­fore the end of the em­ploy­ment re­la­tion­ship, the peri­od of no­tice of ter­min­a­tion shall be ex­ten­ded by the num­ber of days of pa­tern­ity leave not yet taken.¹⁸²

Mass re­dund­an­cies are no­tices of ter­min­a­tion giv­en by the em­ploy­er to em­ploy­ees of a busi­ness with­in 30 days of each oth­er for reas­ons not per­tain­ing per­son­ally to the em­ploy­ees and which af­fect:

1.

at least 10 em­ploy­ees in a busi­ness nor­mally em­ploy­ing more than 20 and few­er than 100 em­ploy­ees;

2.

at least 10% of the em­ploy­ees of a busi­ness nor­mally em­ploy­ing at least 100 and few­er than 300 em­ploy­ees;

3.

at least 30 em­ploy­ees in a busi­ness nor­mally em­ploy­ing at least 300 em­ploy­ees.

¹ The pro­vi­sions gov­ern­ing mass re­dund­an­cies ap­ply equally to fixed-term em­ploy­ment re­la­tion­ships ter­min­ated pri­or to ex­piry of their agreed dur­a­tion.

² They do not ap­ply in the event of ces­sa­tion of busi­ness op­er­a­tions by court or­der or in the case of mass re­dund­an­cies due to bank­ruptcy or un­der a com­pos­i­tion agree­ment with as­sign­ment of as­sets.¹⁸⁵

¹ An em­ploy­er in­tend­ing to make mass re­dund­an­cies must con­sult the or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, the em­ploy­ees them­selves.

² He must give them at least an op­por­tun­ity to for­mu­late pro­pos­als on how to avoid such re­dund­an­cies or lim­it their num­ber and how to mit­ig­ate their con­sequences.

³ He must fur­nish the or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, the em­ploy­ees them­selves with all ap­pro­pri­ate in­form­a­tion and in any event must in­form them in writ­ing of:

a.

the reas­ons for the mass re­dund­an­cies;

b.

the num­ber of em­ploy­ees to whom no­tice has been giv­en;

c.

the num­ber of em­ploy­ees nor­mally em­ployed in the busi­ness;

d.

the peri­od in which he plans to is­sue the no­tices of ter­min­a­tion.

⁴ He must for­ward a copy of the in­form­a­tion stip­u­lated in para­graph 3 to the can­ton­al em­ploy­ment of­fice.

¹ The em­ploy­er no­ti­fies the can­ton­al em­ploy­ment of­fice in writ­ing of any in­ten­ded mass re­dund­an­cies and for­wards a copy of such no­ti­fic­a­tion to the or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, to the em­ploy­ees them­selves.

² Such no­ti­fic­a­tion must con­tain the res­ults of the con­sulta­tion with the or­gan­isa­tion that rep­res­ents the em­ploy­ees (Art. 335f) and all ap­pro­pri­ate in­form­a­tion re­gard­ing the in­ten­ded mass re­dund­an­cies.

³ The can­ton­al em­ploy­ment of­fice seeks solu­tions to the prob­lems cre­ated by the in­ten­ded mass re­dund­an­cies. The or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, the em­ploy­ees them­selves may sub­mit their own com­ments.

⁴ Where no­tice to ter­min­ate an em­ploy­ment re­la­tion­ship has been giv­en with­in the con­text of mass re­dund­an­cies, the re­la­tion­ship ends 30 days after the date on which the mass re­dund­an­cies were no­ti­fied to the can­ton­al em­ploy­ment of­fice un­less such no­tice of ter­min­a­tion takes ef­fect at a later date pur­su­ant to stat­utory or con­trac­tu­al pro­vi­sions.

¹ A so­cial plan is an agree­ment in which an em­ploy­er and em­ploy­ees set out meas­ures to avoid re­dund­an­cies or to re­duce their num­bers and mit­ig­ate their ef­fects.

² It must not jeop­ard­ise the con­tin­ued ex­ist­ence of the com­pany.

¹ The em­ploy­er must hold ne­go­ti­ations with the em­ploy­ees with the aim of pre­par­ing a so­cial plan if he:

a.

nor­mally em­ploys at least 250 em­ploy­ees; and

b.

in­tends to make at least 30 em­ploy­ees re­dund­ant with­in 30 days for reas­ons that have no con­nec­tion with their per­sons.

² Re­dund­an­cies over a longer peri­od of time that are based on the same op­er­a­tion­al de­cision are coun­ted to­geth­er.

³ The em­ploy­er ne­go­ti­ates:

a.

with the em­ploy­ee as­so­ci­ations that are party to the col­lect­ive em­ploy­ment con­tract if he is a party to this col­lect­ive em­ploy­ment con­tract;

b.

with the or­gan­isa­tion rep­res­ent­ing the em­ploy­ees; or

c.

dir­ectly with the em­ploy­ees if there is no or­gan­isa­tion rep­res­ent­ing the em­ploy­ees.

⁴ The em­ploy­ee as­so­ci­ations, the or­gan­isa­tion rep­res­ent­ing the em­ploy­ees or the em­ploy­ees may in­vite spe­cial­ist ad­visers to the ne­go­ti­ations. These per­sons must pre­serve con­fid­en­ti­al­ity in deal­ings with per­sons out­side the com­pany.

¹ If the parties are un­able to agree on a so­cial plan, an ar­bit­ral tribunal is ap­poin­ted.

² The ar­bit­ral tribunal is­sues the so­cial plan in a bind­ing ar­bit­ral award auf.

The pro­vi­sions on the so­cial plan (Art. 335h–335j) do not ap­ply to mass re­dund­an­cies that oc­cur dur­ing bank­ruptcy or com­pos­i­tion pro­ceed­ings that are con­cluded with a com­pos­i­tion agree­ment.

¹ No­tice of ter­min­a­tion is un­law­ful where giv­en by one party:

a.

on ac­count of an at­trib­ute per­tain­ing to the per­son of the oth­er party, un­less such at­trib­ute relates to the em­ploy­ment re­la­tion­ship or sub­stan­tially im­pairs co­oper­a­tion with­in the busi­ness;

b.

be­cause the oth­er party ex­er­cises a con­sti­tu­tion­al right, un­less the ex­er­cise of such right breaches an ob­lig­a­tion arising from the em­ploy­ment re­la­tion­ship or sub­stan­tially im­pairs co­oper­a­tion with­in the busi­ness;

c.

solely in or­der to pre­vent claims un­der the em­ploy­ment re­la­tion­ship from ac­cru­ing to the oth­er party;

d.

be­cause the oth­er party as­serts claims un­der the em­ploy­ment re­la­tion­ship in good faith;

e.¹⁹³

be­cause the oth­er party is per­form­ing Swiss com­puls­ory mil­it­ary or civil de­fence ser­vice or Swiss al­tern­at­ive ci­vil­ian ser­vice or a non-vol­un­tary leg­al ob­lig­a­tion.

² Fur­ther, no­tice of ter­min­a­tion giv­en by the em­ploy­er is un­law­ful when giv­en:

a.

be­cause the em­ploy­ee is or is not a mem­ber of an em­ploy­ees’ or­gan­isa­tion or be­cause he car­ries out trade uni­on activ­it­ies in a law­ful man­ner;

b.

while the em­ploy­ee is an elec­ted em­ploy­ee rep­res­ent­at­ive on the staff coun­cil for the busi­ness or on a body linked to the busi­ness and the em­ploy­er can­not cite just cause to ter­min­ate his em­ploy­ment;

c.¹⁹⁴

in the con­text of mass re­dund­an­cies, without his hav­ing con­sul­ted the or­gan­isa­tion that rep­res­ents the em­ploy­ees or, where there is none, the em­ploy­ees them­selves (Art. 335f).

³ The pro­tec­tion against ter­min­a­tion of em­ploy­ment af­forded pur­su­ant to para­graph 2 let­ter b to an em­ploy­ee rep­res­ent­at­ive whose man­date has ended as a res­ult of trans­fer of the em­ploy­ment re­la­tion­ship (Art. 333) con­tin­ues un­til such time as the man­date would have ex­pired had such trans­fer not taken place.¹⁹⁵

¹ A party who ter­min­ates the em­ploy­ment re­la­tion­ship un­law­fully must pay com­pens­a­tion to the oth­er party.

² The court de­term­ines the com­pens­a­tion tak­ing due ac­count of all the cir­cum­stances, though it must not ex­ceed an amount equi­val­ent to six months’ salary for the em­ploy­ee. Claims for dam­ages on oth­er counts are un­af­fected.

³ Where ter­min­a­tion is un­law­ful pur­su­ant to Art­icle 336 para­graph 2 let­ter c, com­pens­a­tion may not ex­ceed two months’ salary for the em­ploy­ee.¹⁹⁷

¹ A party seek­ing com­pens­a­tion pur­su­ant to Art­icles 336 and 336a must sub­mit his ob­jec­tion to the no­tice of ter­min­a­tion in writ­ing to the party giv­ing such no­tice not later than the end of the no­tice peri­od.

² Where the ob­jec­tion has been prop­erly sub­mit­ted and the parties can­not reach agree­ment on the con­tinu­ation of the em­ploy­ment re­la­tion­ship, the party on whom no­tice was served may bring his claim for com­pens­a­tion. The claim pre­scribes if not brought be­fore the courts with­in 180 days of the end of the em­ploy­ment re­la­tion­ship.

¹ After the pro­ba­tion peri­od has ex­pired, the em­ploy­er may not ter­min­ate the em­ploy­ment re­la­tion­ship:

a.²⁰⁰

while the oth­er party is per­form­ing Swiss com­puls­ory mil­it­ary or civil de­fence ser­vice or Swiss al­tern­at­ive ci­vil­ian ser­vice or, where such ser­vice lasts for more than el­ev­en²⁰¹ days, dur­ing the four weeks pre­ced­ing or fol­low­ing it;

b.

while the em­ploy­ee through no fault of his own is par­tially or en­tirely pre­ven­ted from work­ing by ill­ness or ac­ci­dent for up to 30 days in the first year of ser­vice, 90 days in the second to fifth years of ser­vice and 180 days in the sixth and sub­sequent years of ser­vice;

c.

dur­ing the preg­nancy of an em­ploy­ee and the six­teen weeks fol­low­ing birth;

c^bis.²⁰²

be­fore the end of the ex­ten­ded peri­od of ma­ter­nity leave in ac­cord­ance with Art­icle 329f para­graph 2;

c^ter.²⁰³

between the start of leave in ac­cord­ance with Art­icle 329f para­graph 3 and the last day of leave taken, but for a max­im­um of three months from the end of the peri­od in ac­cord­ance with let­ter c;

c^quater.²⁰⁴

for as long as the em­ploy­ee is en­titled to carer’s leave un­der Art­icle 329i, but for no longer than six months from the day on which the peri­od with­in which to take the leave be­gins;

c^quin­quies.²⁰⁵ while leave is be­ing taken in ac­cord­ance with Art­icle 329g^bis;

d.

while the em­ploy­ee is par­ti­cip­at­ing with the em­ploy­er’s con­sent in an over­seas aid pro­ject ordered by the com­pet­ent fed­er­al au­thor­ity.

² Any no­tice of ter­min­a­tion giv­en dur­ing the pro­scribed peri­ods stip­u­lated in para­graph 1 is void; by con­trast, where such no­tice was giv­en pri­or to the com­mence­ment of a pro­scribed peri­od but the no­tice peri­od has not yet ex­pired at that junc­ture, it is sus­pen­ded and does not re­sume un­til the pro­scribed peri­od has ended.

³ Where a spe­cif­ic end-point, such as the end of a month or work­ing week, has been set for ter­min­a­tion of the em­ploy­ment re­la­tion­ship and such end-point does not co­in­cide with the ex­piry of the re­sumed no­tice peri­od, the lat­ter is ex­ten­ded un­til the next ap­plic­able end-point.

¹ After the pro­ba­tion peri­od has ex­pired, the em­ploy­ee may not ter­min­ate the em­ploy­ment re­la­tion­ship if he is re­quired to dep­u­tise for a hier­arch­ic­al su­per­i­or whose func­tion the em­ploy­ee is cap­able of as­sum­ing or for the em­ploy­er him­self who is pre­ven­ted from work­ing by the reas­ons set out at Art­icle 336c para­graph 1 let­ter a.

² Art­icle 336c para­graphs 2 and 3 ap­ply mu­tatis mutandis.

¹ Both em­ploy­er and em­ploy­ee may ter­min­ate the em­ploy­ment re­la­tion­ship with im­me­di­ate ef­fect at any time for good cause; the party do­ing so must give his reas­ons in writ­ing at the oth­er party’s re­quest.²⁰⁷

² In par­tic­u­lar, good cause is any cir­cum­stance which renders the con­tinu­ation of the em­ploy­ment re­la­tion­ship in good faith un­con­scion­able for the party giv­ing no­tice.

³ The court de­term­ines at its dis­cre­tion wheth­er there is good cause, However, un­der no cir­cum­stances may the court hold that good cause is con­sti­tuted by an em­ploy­ee be­ing pre­ven­ted from work­ing through no fault of his own.

In the event of the em­ploy­er’s in­solv­ency, the em­ploy­ee may ter­min­ate the em­ploy­ment re­la­tion­ship with im­me­di­ate ef­fect un­less he is fur­nished with se­cur­ity for his claims un­der such re­la­tion­ship with­in an ap­pro­pri­ate peri­od.

¹ Where the good cause for ter­min­at­ing the em­ploy­ment re­la­tion­ship with im­me­di­ate ef­fect con­sists in breach of con­tract by one party, he is fully li­able in dam­ages with due re­gard to all claims arising un­der the em­ploy­ment re­la­tion­ship.

² In oth­er even­tu­al­it­ies the court de­term­ines the fin­an­cial con­sequences of ter­min­a­tion with im­me­di­ate ef­fect at its dis­cre­tion, tak­ing due ac­count of all the cir­cum­stances.

¹ Where the em­ploy­er dis­misses the em­ploy­ee with im­me­di­ate ef­fect without good cause, the em­ploy­ee is en­titled to dam­ages in the amount he would have earned had the em­ploy­ment re­la­tion­ship ended after the re­quired no­tice peri­od or on ex­piry of its agreed dur­a­tion.

² Such dam­ages are re­duced by any amounts that the em­ploy­ee saved as a res­ult of the ter­min­a­tion of the em­ploy­ment re­la­tion­ship or that he earned by per­form­ing oth­er work or would have earned had he not in­ten­tion­ally fore­gone such work.

³ The court may or­der the em­ploy­er to pay the em­ploy­ee an amount of com­pens­a­tion de­term­ined at the court’s dis­cre­tion tak­ing due ac­count of all cir­cum­stances; however, com­pens­a­tion may not ex­ceed the equi­val­ent of six months’ salary for the em­ploy­ee.

¹ Where the em­ploy­ee fails to take up his post or leaves it without no­tice without good cause, the em­ploy­er is en­titled to com­pens­a­tion equal to one-quarter of the em­ploy­ee’s monthly salary; in ad­di­tion, he is en­titled to dam­ages for any fur­ther losses.

² Where the em­ploy­er has suffered no losses or lower losses than the value of the com­pens­a­tion stip­u­lated in the pre­vi­ous para­graph, the court may re­duce the com­pens­a­tion at its dis­cre­tion.

³ Where the claim for dam­ages is not ex­tin­guished by set-off, it must be as­ser­ted by means of leg­al ac­tion or debt en­force­ment pro­ceed­ings with­in 30 days of the fail­ure to take up the post or de­par­ture from it, fail­ing which it pre­scribes.²⁰⁹

⁴ ...²¹⁰

¹ The em­ploy­ment re­la­tion­ship ends on the death of the em­ploy­ee.

² However, the em­ploy­er must pay the salary for a fur­ther month there­after or, where the em­ploy­ee had com­pleted more than five years of ser­vice, for a fur­ther two months, provided the em­ploy­ee is sur­vived by a spouse, a re­gistered part­ner, chil­dren who are minors or, in the ab­sence of such heirs, oth­er per­sons to whom he had a duty to provide sup­port.²¹¹

¹ On the death of the em­ploy­er, the em­ploy­ment re­la­tion­ship passes to his heirs; the pro­vi­sions gov­ern­ing trans­fer of em­ploy­ment re­la­tion­ships on trans­fer of a busi­ness ap­ply mu­tatis mutandis.

² Where an em­ploy­ment re­la­tion­ship was entered in­to with the em­ploy­er in per­son, it ends on his death; however, the em­ploy­ee may claim ap­pro­pri­ate com­pens­a­tion for losses in­curred as a res­ult of the pre­ma­ture ter­min­a­tion of the em­ploy­ment re­la­tion­ship.

¹ When the em­ploy­ment re­la­tion­ship ends, all claims arising there­from fall due.

² In the case of claims for com­mis­sion on trans­ac­tions per­formed partly or en­tirely after the end of the em­ploy­ment re­la­tion­ship, the due date may be de­ferred by writ­ten agree­ment, al­beit gen­er­ally for no more than six months, or for no more than one year in the case of trans­ac­tions in­volving per­form­ance in in­stal­ments, and for no more than two years in the case of in­sur­ance policies and trans­ac­tions whose ex­e­cu­tion takes more than half a year.

³ The claim for a share of the busi­ness res­ults be­comes due in ac­cord­ance with Art­icle 323 para­graph 3.

¹ By the time the em­ploy­ment re­la­tion­ship ends, each con­tract­ing party must re­turn to the oth­er everything re­ceived from him or from third parties for his ac­count dur­ing the em­ploy­ment re­la­tion­ship.

² In par­tic­u­lar, the em­ploy­ee must re­turn mo­tor vehicles and travel tick­ets and re­pay ad­vances against salary and ex­penses to the ex­tent that they ex­ceed his claims.

³ The con­tract­ing parties’ rights of li­en are un­af­fected.

¹ Where an em­ploy­ment re­la­tion­ship with an em­ploy­ee of at least 50 years of age comes to an end after twenty years or more of ser­vice, the em­ploy­er must pay the em­ploy­ee a sev­er­ance al­low­ance.

² If the em­ploy­ee dies dur­ing the em­ploy­ment re­la­tion­ship, such al­low­ance is paid to the sur­viv­ing spouse, re­gistered part­ner or chil­dren who are minors or, in the ab­sence of such heirs, oth­er per­sons to whom he had a duty to provide sup­port.²¹²

¹ The amount of the sev­er­ance al­low­ance may be fixed by writ­ten in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract but may nev­er be less than two months’ salary for the em­ploy­ee.

² Where the amount of the sev­er­ance al­low­ance is not fixed, the court has dis­cre­tion to de­term­ine it tak­ing due ac­count of all the cir­cum­stances, al­though it must not ex­ceed the equi­val­ent of eight months’ salary for the em­ploy­ee.

³ The sev­er­ance al­low­ance may be re­duced or dis­pensed with if the em­ploy­ee has ter­min­ated the em­ploy­ment re­la­tion­ship without good cause or the em­ploy­er him­self has ter­min­ated it with im­me­di­ate ef­fect for good cause or where the pay­ment of such al­low­ance would in­flict fin­an­cial hard­ship on him.

⁴ The sev­er­ance al­low­ance is due on ter­min­a­tion of the em­ploy­ment re­la­tion­ship, but the due date may be de­ferred by writ­ten in­di­vidu­al agree­ment, stand­ard em­ploy­ment con­tract or col­lect­ive em­ploy­ment con­tract or by court or­der.

¹ Where the em­ploy­ee re­ceives be­ne­fits from an oc­cu­pa­tion­al be­ne­fits scheme, these may be de­duc­ted from the sev­er­ance al­low­ance to the ex­tent that they were fun­ded by the em­ploy­er either dir­ectly or through his con­tri­bu­tions to the oc­cu­pa­tion­al be­ne­fits scheme.²¹³

² The em­ploy­er is like­wise re­leased from his ob­lig­a­tion to make a sev­er­ance al­low­ance to the ex­tent that he gives a bind­ing com­mit­ment to make fu­ture be­ne­fits con­tri­bu­tions on the em­ploy­ee’s be­half or has a third party give such a com­mit­ment.

¹ An em­ploy­ee with ca­pa­city to act may give the em­ploy­er a writ­ten un­der­tak­ing to re­frain from en­ga­ging in any activ­ity that com­petes with the em­ploy­er once the em­ploy­ment re­la­tion­ship has ended and in par­tic­u­lar to re­frain from run­ning a rival busi­ness for his own ac­count or from work­ing for or par­ti­cip­at­ing in such a busi­ness.

² The pro­hib­i­tion of com­pet­i­tion is bind­ing only where the em­ploy­ment re­la­tion­ship al­lows the em­ploy­ee to have know­ledge of the em­ploy­er’s cli­en­tele or man­u­fac­tur­ing and trade secrets and where the use of such know­ledge might cause the em­ploy­er sub­stan­tial harm.

¹ The pro­hib­i­tion must be ap­pro­pri­ately re­stric­ted with re­gard to place, time and scope such that it does not un­fairly com­prom­ise the em­ploy­ee’s fu­ture eco­nom­ic activ­ity; it may ex­ceed three years only in spe­cial cir­cum­stances.

² The court may at its dis­cre­tion im­pose re­stric­tions on an ex­cess­ive pro­hib­i­tion of com­pet­i­tion, tak­ing due ac­count of all the cir­cum­stances; in par­tic­u­lar it will have due re­gard to any con­sid­er­a­tion made by the em­ploy­er.

¹ An em­ploy­ee who in­fringes the pro­hib­i­tion of com­pet­i­tion must provide com­pens­a­tion for the res­ult­ant dam­age to the em­ploy­er.

² Where an em­ploy­ee who in­fringes the pro­hib­i­tion is li­able to pay a con­trac­tu­al pen­alty, un­less oth­er­wise agreed he may ex­empt him­self from the pro­hib­i­tion by pay­ing it; however, he re­mains li­able in dam­ages for any fur­ther dam­age.

³ Where ex­pressly so agreed in writ­ing, in ad­di­tion to the agreed con­trac­tu­al pen­alty and any fur­ther dam­ages, the em­ploy­er may in­sist that the situ­ation that breaches the con­tract be rec­ti­fied to the ex­tent jus­ti­fied by the in­jury or threat to the em­ploy­er’s in­terests and by the con­duct of the em­ploy­ee.

¹ The pro­hib­i­tion of com­pet­i­tion is ex­tin­guished once the em­ploy­er demon­strably no longer has a sub­stan­tial in­terest in its con­tinu­ation.

² The pro­hib­i­tion is like­wise ex­tin­guished if the em­ploy­er ter­min­ates the em­ploy­ment re­la­tion­ship without the em­ploy­ee hav­ing giv­en him any good cause to do so, or if the em­ploy­ee ter­min­ates it for good cause at­trib­ut­able to the em­ploy­er.

¹ For the peri­od of the em­ploy­ment re­la­tion­ship and for one month after its end, the em­ploy­ee may not waive claims arising from man­dat­ory pro­vi­sions of law or the man­dat­ory pro­vi­sions of a col­lect­ive em­ploy­ment con­tract.

² Gen­er­al pro­vi­sions gov­ern­ing pre­script­ive peri­ods are ap­plic­able to claims un­der the em­ploy­ment re­la­tion­ship.

¹ The fol­low­ing are re­served:

a.²¹⁴

the pro­vi­sions of the Con­fed­er­a­tion, can­tons and com­munes re­gard­ing em­ploy­ment re­la­tion­ships un­der pub­lic law, ex­cept in re­spect of Art­icle 331 para­graph 5 and Art­icles 331a–331e;

b.

the pub­lic law pro­vi­sions of the Con­fed­er­a­tion and the can­tons gov­ern­ing work and vo­ca­tion­al train­ing.

² Where fed­er­al or can­ton­al pro­vi­sions gov­ern­ing work and vo­ca­tion­al train­ing im­pose an ob­lig­a­tion un­der pub­lic law on the em­ploy­er or em­ploy­ee, the oth­er party has a claim un­der civil law for per­form­ance of said ob­lig­a­tion if it is sus­cept­ible to in­clu­sion in the in­di­vidu­al em­ploy­ment con­tract.