Federal Act
on the Amendment of the Swiss Civil Code
(Part Five: The Code of Obligations)

¹ The con­clu­sion of a con­tract re­quires a mu­tu­al ex­pres­sion of in­tent by the parties.

² The ex­pres­sion of in­tent may be ex­press or im­plied.

¹ Where the parties have agreed on all the es­sen­tial terms, it is pre­sumed that the con­tract will be bind­ing not­with­stand­ing any re­ser­va­tion on sec­ond­ary terms.

² In the event of fail­ure to reach agree­ment on such sec­ond­ary terms, the court must de­term­ine them with due re­gard to the nature of the trans­ac­tion.

³ The fore­go­ing is sub­ject to the pro­vi­sions gov­ern­ing the form of con­tracts.

¹ A per­son who of­fers to enter in­to a con­tract with an­oth­er per­son and sets a time lim­it for ac­cept­ance is bound by his of­fer un­til the time lim­it ex­pires.

² He is no longer bound if no ac­cept­ance has reached him on ex­piry of the time lim­it.

¹ Where an of­fer is made in the of­fer­ee’s pres­ence and no time lim­it for ac­cept­ance is set, it is no longer bind­ing on the of­fer­or un­less the of­fer­ee ac­cepts it im­me­di­ately.

² Con­tracts con­cluded by tele­phone are deemed to have been con­cluded in the parties’ pres­ence where they or their agents com­mu­nic­ated in per­son.

¹ Where an of­fer is made in the of­fer­ee’s ab­sence and no time lim­it for ac­cept­ance is set, it re­mains bind­ing on the of­fer­or un­til such time as he might ex­pect a reply sent duly and promptly to reach him.

² He may as­sume that his of­fer has been promptly re­ceived.

³ Where an ac­cept­ance sent duly and promptly is late in reach­ing the of­fer­or and he does not wish to be bound by his of­fer, he must im­me­di­ately in­form the of­fer­ee.

Where the par­tic­u­lar nature of the trans­ac­tion or the cir­cum­stances are such that ex­press ac­cept­ance can­not reas­on­ably be ex­pec­ted, the con­tract is deemed to have been con­cluded if the of­fer is not re­jec­ted with­in a reas­on­able time.

¹ The send­ing of un­so­li­cited goods does not con­sti­tute an of­fer.

² The re­cip­i­ent is not ob­liged to re­turn or keep such goods.

³ Where un­so­li­cited goods have ob­vi­ously been sent in er­ror, the re­cip­i­ent must in­form the sender.

¹ An of­fer­or is not bound by his of­fer if he has made ex­press de­clar­a­tion to that ef­fect or such a re­ser­va­tion arises from the cir­cum­stances or from the par­tic­u­lar nature of the trans­ac­tion.

² The send­ing of tar­iffs, price lists and the like does not con­sti­tute an of­fer.

³ By con­trast, the dis­play of mer­chand­ise with an in­dic­a­tion of its price does gen­er­ally con­sti­tute an of­fer.

¹ A per­son who pub­licly prom­ises re­mu­ner­a­tion or a re­ward in ex­change for the per­form­ance of an act must pay in ac­cord­ance with his prom­ise.

² If he with­draws his prom­ise be­fore per­form­ance has been made, he must re­im­burse any per­son in­cur­ring ex­pendit­ure in good faith on ac­count of the prom­ise up to the max­im­um amount prom­ised un­less he can prove that such per­son could not have provided the per­form­ance in ques­tion.

¹ An of­fer is deemed not to have been made if its with­draw­al reaches the of­fer­ee be­fore or at the same time as the of­fer it­self or, where it ar­rives sub­sequently, if it is com­mu­nic­ated to the of­fer­ee be­fore he be­comes aware of the of­fer.

² The same ap­plies to a with­draw­al of an ac­cept­ance.

¹ A con­tract con­cluded in the parties’ ab­sence takes ef­fect from the time ac­cept­ance is sent.

² Where ex­press ac­cept­ance is not re­quired, the con­tract takes ef­fect from the time the of­fer is re­ceived.

¹ The valid­ity of a con­tract is not sub­ject to com­pli­ance with any par­tic­u­lar form un­less a par­tic­u­lar form is pre­scribed by law.

² In the ab­sence of any pro­vi­sion to the con­trary on the sig­ni­fic­ance and ef­fect of form­al re­quire­ments pre­scribed by law, the con­tract is val­id only if such re­quire­ments are sat­is­fied.

Where the law re­quires that a con­tract be done in writ­ing, the re­quire­ment also ap­plies to any amend­ment to the con­tract with the ex­cep­tion of sup­ple­ment­ary col­lat­er­al clauses that do not con­flict with the ori­gin­al doc­u­ment.

¹ A con­tract re­quired by law to be in writ­ing must be signed by all per­sons on whom it im­poses ob­lig­a­tions.

² ...³

¹ Sig­na­tures must be ap­pen­ded by hand by the parties to the con­tract.

² A sig­na­ture re­pro­duced by mech­an­ic­al means is re­cog­nised as suf­fi­cient only where such re­pro­duc­tion is cus­tom­ar­ily per­mit­ted, and in par­tic­u­lar in the case of sig­na­tures on large num­bers of is­sued se­cur­it­ies.

^2bis An au­then­tic­ated elec­tron­ic sig­na­ture com­bined with an au­then­tic­ated time stamp with­in the mean­ing of the Fed­er­al Act of 18 March 2016⁴ on Elec­tron­ic Sig­na­tures is deemed equi­val­ent to a hand­writ­ten sig­na­ture, sub­ject to any stat­utory or con­trac­tu­al pro­vi­sion to the con­trary.⁵

³ The sig­na­ture of a blind per­son is bind­ing only if it has been duly cer­ti­fied or if it is proved that he was aware of the terms of the doc­u­ment at the time of sign­ing.

Sub­ject to the pro­vi­sions re­lat­ing to bills of ex­change, any per­son un­able to sign may make a duly cer­ti­fied mark by hand or give a cer­ti­fied de­clar­a­tion in lieu of a sig­na­ture.

¹ Where the parties agree to make a con­tract sub­ject to form­al re­quire­ments not pre­scribed by law, it is pre­sumed that the parties do not wish to as­sume ob­lig­a­tions un­til such time as those re­quire­ments are sat­is­fied.

² Where the parties stip­u­late a writ­ten form without elab­or­at­ing fur­ther, the pro­vi­sions gov­ern­ing the writ­ten form as re­quired by law ap­ply to sat­is­fac­tion of that re­quire­ment.

An ac­know­ledg­ment of debt is val­id even if it does not state the cause of the ob­lig­a­tion.

¹ When as­sess­ing the form and terms of a con­tract, the true and com­mon in­ten­tion of the parties must be as­cer­tained without dwell­ing on any in­ex­act ex­pres­sions or des­ig­na­tions they may have used either in er­ror or by way of dis­guising the true nature of the agree­ment.

² A debt­or may not plead sim­u­la­tion as a de­fence against a third party who has be­come his cred­it­or in re­li­ance on a writ­ten ac­know­ledg­ment of debt.

¹ The terms of a con­tract may be freely de­term­ined with­in the lim­its of the law.

² Clauses that de­vi­ate from those pre­scribed by law are ad­miss­ible only where the law does not pre­scribe man­dat­ory forms of word­ing or where de­vi­ation from the leg­ally pre­scribed terms would con­tra­vene pub­lic policy, mor­al­ity or rights of per­son­al pri­vacy.

¹ A con­tract is void if its terms are im­possible, un­law­ful or im­mor­al.

² However, where the de­fect per­tains only to cer­tain terms of a con­tract, those terms alone are void un­less there is cause to as­sume that the con­tract would not have been con­cluded without them.

¹ Where there is a clear dis­crep­ancy between per­form­ance and con­sid­er­a­tion un­der a con­tract con­cluded as a res­ult of one party’s ex­ploit­a­tion of the oth­er’s straitened cir­cum­stances, in­ex­per­i­ence or thought­less­ness, the per­son suf­fer­ing dam­age may de­clare with­in one year that he will not hon­our the con­tract and de­mand resti­tu­tion of any per­form­ance already made.

² The one-year peri­od com­mences on con­clu­sion of the con­tract.

¹ Parties may reach a bind­ing agree­ment to enter in­to a con­tract at a later date.

² Where in the in­terests of the parties the law makes the valid­ity of a con­tract con­di­tion­al on ob­serv­ance of a par­tic­u­lar form, the same ap­plies to the agree­ment to con­clude a con­tract.

A party la­bour­ing un­der a fun­da­ment­al er­ror when en­ter­ing in­to a con­tract is not bound by that con­tract.

¹ An er­ror is fun­da­ment­al in the fol­low­ing cases in par­tic­u­lar:

1.

where the party act­ing in er­ror in­ten­ded to con­clude a con­tract dif­fer­ent from that to which he con­sen­ted;

2.

where the party act­ing in er­ror has con­cluded a con­tract re­lat­ing to a sub­ject mat­ter oth­er than the sub­ject mat­ter he in­ten­ded or, where the con­tract relates to a spe­cif­ic per­son, to a per­son oth­er than the one he in­ten­ded;

3.

where the party act­ing in er­ror has prom­ised to make a sig­ni­fic­antly great­er per­form­ance or has ac­cep­ted a prom­ise of a sig­ni­fic­antly less­er con­sid­er­a­tion than he ac­tu­ally in­ten­ded;

4.

where the er­ror relates to spe­cif­ic facts which the party act­ing in er­ror con­sidered in good faith to be a ne­ces­sary basis for the con­tract.

² However, where the er­ror relates solely to the reas­on for con­clud­ing the con­tract, it is not fun­da­ment­al.

³ Cal­cu­la­tion er­rors do not render a con­tract any less bind­ing, but must be cor­rec­ted.

¹ A per­son may not in­voke er­ror in a man­ner con­trary to good faith.

² In par­tic­u­lar, the party act­ing in er­ror re­mains bound by the con­tract he in­ten­ded to con­clude, provided the oth­er party ac­cepts that con­tract.

¹ A party act­ing in er­ror and in­vok­ing that er­ror to re­pu­di­ate a con­tract is li­able for any dam­age arising from the nullity of the agree­ment where the er­ror is at­trib­ut­able to his own neg­li­gence, un­less the oth­er party knew or should have known of the er­ror.

² In the in­terests of equity, the court may award fur­ther dam­ages to the per­son suf­fer­ing dam­age.

Where an of­fer to enter in­to a con­tract or the ac­cept­ance of that of­fer has been in­cor­rectly com­mu­nic­ated by a mes­sen­ger or oth­er in­ter­me­di­ary, the pro­vi­sions gov­ern­ing er­ror ap­ply mu­tatis mutandis.

¹ A party in­duced to enter in­to a con­tract by the fraud of the oth­er party is not bound by it even if his er­ror is not fun­da­ment­al.

² A party who is the vic­tim of fraud by a third party re­mains bound by the con­tract un­less the oth­er party knew or should have known of the fraud at the time the con­tract was con­cluded.

¹ Where a party has entered in­to a con­tract un­der duress from the oth­er party or a third party, he is not bound by that con­tract.

² Where the duress ori­gin­ates from a third party and the oth­er party neither knew nor should have known of it, a party un­der duress who wishes to be re­leased from the con­tract must pay com­pens­a­tion to the oth­er party where equity so re­quires.

¹ A party is un­der duress if, in the cir­cum­stances, he has good cause to be­lieve that there is im­min­ent and sub­stan­tial risk to his own life, limb, repu­ta­tion or prop­erty or to those of a per­son close to him.

² The fear that an­oth­er per­son might en­force a le­git­im­ate claim is taken in­to con­sid­er­a­tion only where the straitened cir­cum­stances of the party un­der duress have been ex­ploited in or­der to ex­tort ex­cess­ive be­ne­fits from him.

¹ Where the party act­ing un­der er­ror, fraud or duress neither de­clares to the oth­er party that he in­tends not to hon­our the con­tract nor seeks resti­tu­tion for the per­form­ance made with­in one year, the con­tract is deemed to have been rat­i­fied.

² The one-year peri­od runs from the time that the er­ror or the fraud was dis­covered or from the time that the duress ended.

³ The rat­i­fic­a­tion of a con­tract made void­able by duress or fraud does not auto­mat­ic­ally ex­clude the right to claim dam­ages.

¹ The rights and ob­lig­a­tions arising from a con­tract made by an agent in the name of an­oth­er per­son ac­crue to the per­son rep­res­en­ted, and not to the agent.

² Where the agent did not make him­self known as such when mak­ing the con­tract, the rights and ob­lig­a­tions arising there­from ac­crue dir­ectly to the per­son rep­res­en­ted only if the oth­er party must have in­ferred the agency re­la­tion­ship from the cir­cum­stances or did not care with whom the con­tract was made.

³ Where this is not the case, the claim must be as­signed or the debt as­sumed in ac­cord­ance with the prin­ciples gov­ern­ing such meas­ures.

¹ Where au­thor­ity to act on be­half of an­oth­er stems from re­la­tion­ships es­tab­lished un­der pub­lic law, it is gov­erned by the pub­lic law pro­vi­sions of the Con­fed­er­a­tion or the can­tons.

² Where such au­thor­ity is con­ferred by means of the trans­ac­tion it­self, its scope is de­term­ined by that trans­ac­tion.

³ Where a prin­cip­al grants such au­thor­ity to a third party and in­forms the lat­ter there­of, the scope of the au­thor­ity con­ferred on the third party is de­term­ined ac­cord­ing to word­ing of the com­mu­nic­a­tion made to him.

¹ A prin­cip­al au­thor­ising an­oth­er to act on his be­half by means of a trans­ac­tion may re­strict or re­voke such au­thor­ity at any time without pre­ju­dice to any rights ac­quired by those in­volved un­der ex­ist­ing leg­al re­la­tion­ships, such as an in­di­vidu­al con­tract of em­ploy­ment, a part­ner­ship agree­ment or a man­date.⁶

² Any ad­vance waiver of this right by the prin­cip­al is void.

³ Where the rep­res­en­ted party has ex­pressly or de facto an­nounced the au­thor­ity he has con­ferred, he may not in­voke its total or par­tial re­voc­a­tion against a third party act­ing in good faith un­less he has like­wise an­nounced such re­voc­a­tion.

¹ The au­thor­ity con­ferred by means of a trans­ac­tion is ex­tin­guished on the loss of ca­pa­city to act, bank­ruptcy, death, or de­clar­a­tion of pre­sumed death of the prin­cip­al or the agent, un­less the con­trary has been agreed or is im­plied by the nature of the trans­ac­tion.⁷

² The same ap­plies on the dis­sol­u­tion of a leg­al en­tity or a com­pany or part­ner­ship entered in the com­mer­cial re­gister.

³ The mu­tu­al per­son­al rights of the parties are un­af­fected.

¹ Where an agent has been is­sued with an in­stru­ment set­ting out his au­thor­ity, he must re­turn it or de­pos­it it with the court when that au­thor­ity has ended.

² Where the prin­cip­al or his leg­al suc­cessors have omit­ted to in­sist on the re­turn of such in­stru­ment, they are li­able to bona fide third parties for any dam­age arising from that omis­sion.

¹ Un­til such time as an agent be­comes aware that his au­thor­ity has ended, his ac­tions con­tin­ue to give rise to rights and ob­lig­a­tions on the part of the prin­cip­al or the lat­ter’s leg­al suc­cessors as if the agent's au­thor­ity still ex­is­ted.

² This does not ap­ply in cases in which the third party is aware that the agent’s au­thor­ity has ended.

¹ Where a per­son without au­thor­ity enters in­to a con­tract on be­half of a third party, rights and ob­lig­a­tions do not ac­crue to the lat­ter un­less he rat­i­fies the con­tract.

² The oth­er party has the right to re­quest that the rep­res­en­ted party rat­i­fy the con­tract with­in a reas­on­able time, fail­ing which he is no longer bound by it.

¹ Where rat­i­fic­a­tion is ex­pressly or im­pli­citly re­fused, ac­tion may be brought against the per­son who ac­ted as agent for com­pens­a­tion in re­spect of any dam­age caused by the ex­tinc­tion of the con­tract un­less he can prove that the oth­er party knew or should have known that he lacked the prop­er au­thor­ity.

² Where the agent is at fault, the court may or­der him to pay fur­ther dam­ages on grounds of equity.

³ In all cases, claims for un­just en­rich­ment are re­served.

The spe­cial pro­vi­sions gov­ern­ing the au­thor­ity of agents and gov­ern­ing bod­ies of com­pan­ies and part­ner­ships and of re­gistered and oth­er au­thor­ised agents are un­af­fected.

¹ The fol­low­ing pro­vi­sions ap­ply to con­tracts re­lat­ing to goods and ser­vices in­ten­ded for the cus­tom­er’s per­son­al or fam­ily use where:

a.

the sup­pli­er of the goods or ser­vices ac­ted in a pro­fes­sion­al or com­mer­cial ca­pa­city; and

b.

the con­sid­er­a­tion from the buy­er ex­ceeds 100 francs.

² These pro­vi­sions do not ap­ply to leg­al trans­ac­tions that are entered in­to by fin­an­cial in­sti­tu­tions and banks with­in the frame­work of ex­ist­ing fin­an­cial ser­vices con­tracts in ac­cord­ance with the Fin­an­cial Ser­vices Act of 15 June 2018⁹.¹⁰

^2bis For in­sur­ance policies, the pro­vi­sions of the In­sur­ance Policies Act of 2 April 1908¹¹ ap­ply.¹²

³ In the event of sig­ni­fic­ant change to the pur­chas­ing power of the na­tion­al cur­rency, the Fed­er­al Coun­cil shall ad­just the sum in­dic­ated in para. 1 let. b ac­cord­ingly.

A cus­tom­er may re­voke his of­fer to enter in­to a con­tract or his ac­cept­ance of such an of­fer if the trans­ac­tion was pro­posed:

a.¹⁴

at his place of work, on res­id­en­tial premises or in their im­me­di­ate vi­cin­ity;

b.

on pub­lic trans­port or on a pub­lic thor­ough­fare;

c.

dur­ing a pro­mo­tion­al event held in con­nec­tion with an ex­cur­sion or sim­il­ar event;

d.¹⁵

by tele­phone or by a com­par­able means of sim­ul­tan­eous verbal com­mu­nic­a­tion.

The cus­tom­er has no right of re­voc­a­tion:

a.

if he ex­pressly re­ques­ted the con­trac­tu­al ne­go­ti­ations;

b.

if he de­clared his of­fer or ac­cept­ance at a stand at a mar­ket or trade fair.

¹ The sup­pli­er must in­form the cus­tom­er in writ­ing or in an­oth­er form that may be evid­enced by text of the lat­ter’s right of re­voc­a­tion and of the form and time lim­it to be ob­served when ex­er­cising such right, and must provide his ad­dress.¹⁸

² Such in­form­a­tion must be dated and per­mit iden­ti­fic­a­tion of the con­tract in ques­tion.

³ The in­form­a­tion must be trans­mit­ted in such a man­ner that the cus­tom­er is aware of it when he pro­poses or ac­cepts the con­tract.¹⁹

¹ Re­voc­a­tion need not be in any par­tic­u­lar form. The onus is on the cus­tom­er to prove that he has re­voked the con­tract with­in the time lim­it.²¹

² The pre­script­ive peri­od for re­voc­a­tion is 14 days and com­mences as soon as the cus­tom­er:²²

a.

has pro­posed or ac­cep­ted the con­tract; and

b.

has be­come aware of the in­form­a­tion stip­u­lated in Art. 40d.

³ The onus is on the sup­pli­er to prove when the cus­tom­er re­ceived the in­form­a­tion stip­u­lated in Art. 40d.

⁴ The time lim­it is ob­served if, on the last day of the pre­script­ive peri­od, the cus­tom­er in­forms the sup­pli­er of re­voc­a­tion or posts his writ­ten no­tice of re­voc­a­tion.²³

¹ Where the cus­tom­er has re­voked the con­tract, the parties must provide resti­tu­tion for any per­form­ance already made.

² Where the cus­tom­er has made use of the goods, he owes an ap­pro­pri­ate rent­al pay­ment to the sup­pli­er.

³ Where the sup­pli­er has rendered ser­vices to him, the cus­tom­er must re­im­burse the sup­pli­er for out­lays and ex­penses in­curred in ac­cord­ance with the pro­vi­sions gov­ern­ing man­dates (Art. 402).

⁴ The cus­tom­er does not owe the sup­pli­er any fur­ther com­pens­a­tion.

¹ Any per­son who un­law­fully causes dam­age to an­oth­er, wheth­er wil­fully or neg­li­gently, is ob­liged to provide com­pens­a­tion.

² A per­son who wil­fully causes dam­age to an­oth­er in an im­mor­al man­ner is like­wise ob­liged to provide com­pens­a­tion.

¹ A per­son claim­ing dam­ages must prove that dam­age oc­curred.

² Where the ex­act value of the dam­age can­not be quan­ti­fied, the court shall es­tim­ate the value at its dis­cre­tion in the light of the nor­mal course of events and the steps taken by the per­son suf­fer­ing dam­age.

³ The costs of treat­ing an­im­als kept as pets rather than for in­vest­ment or com­mer­cial pur­poses may be claimed with­in ap­pro­pri­ate lim­its as a loss even if they ex­ceed the value of the an­im­al.²⁶

¹ The court de­term­ines the form and ex­tent of the com­pens­a­tion provided for dam­age in­curred, with due re­gard to the cir­cum­stances and the de­gree of culp­ab­il­ity.

^1bis Where an an­im­al kept as a pet rather than for in­vest­ment or com­mer­cial pur­poses has been in­jured or killed, the court may take ap­pro­pri­ate ac­count of its sen­ti­ment­al value to its own­er or his de­pend­ants.²⁷

² Where dam­ages are awar­ded in the form of peri­od­ic pay­ments, the debt­or must at the same time post se­cur­ity.

¹ Where the per­son suf­fer­ing dam­age con­sen­ted to the harm­ful act or cir­cum­stances at­trib­ut­able to him helped give rise to or com­pound the dam­age or oth­er­wise ex­acer­bated the po­s­i­tion of the party li­able for it, the court may re­duce the com­pens­a­tion due or even dis­pense with it en­tirely.

² The court may also re­duce the com­pens­a­tion award in cases in which the dam­age was caused neither wil­fully nor by gross neg­li­gence and where pay­ment of such com­pens­a­tion would leave the li­able party in fin­an­cial hard­ship.

¹ In a case of hom­icide, com­pens­a­tion must cov­er all ex­penses arising and in par­tic­u­lar the fu­ner­al costs.

² Where death did not oc­cur im­me­di­ately, the com­pens­a­tion must also in­clude the costs of med­ic­al treat­ment and losses arising from in­ab­il­ity to work.

³ Where oth­ers are de­prived of their means of sup­port as a res­ult of hom­icide, they must also be com­pensated for that loss.

¹ In the event of per­son­al in­jury, the vic­tim is en­titled to re­im­burse­ment of ex­penses in­curred and to com­pens­a­tion for any total or par­tial in­ab­il­ity to work and for any loss of fu­ture earn­ings.

² Where the con­sequences of the per­son­al in­jury can­not be as­sessed with suf­fi­cient cer­tainty at the time the award is made, the court may re­serve the right to amend the award with­in two years of the date on which it was made.

In cases of hom­icide or per­son­al in­jury, the court may award the vic­tim of per­son­al in­jury or the de­pend­ants of the de­ceased an ap­pro­pri­ate sum by way of sat­is­fac­tion.

¹ Any per­son whose per­son­al­ity rights are un­law­fully in­fringed is en­titled to a sum of money by way of sat­is­fac­tion provided this is jus­ti­fied by the ser­i­ous­ness of the in­fringe­ment and no oth­er amends have been made.

² The court may or­der that sat­is­fac­tion be provided in an­oth­er man­ner in­stead of or in ad­di­tion to mon­et­ary com­pens­a­tion.

¹ Where two or more per­sons have to­geth­er caused dam­age, wheth­er as in­stig­at­or, per­pet­rat­or or ac­com­plice, they are jointly and sev­er­ally li­able to the per­son suf­fer­ing dam­age.

² The court de­term­ines at its dis­cre­tion wheth­er and to what ex­tent they have right of re­course against each oth­er.

³ Abet­tors are li­able in dam­ages only to the ex­tent that they re­ceived a share in the gains or caused dam­age due to their in­volve­ment.

¹ Where two or more per­sons are li­able for the same dam­age on dif­fer­ent leg­al grounds, wheth­er un­der tort law, con­tract law or by stat­ute, the pro­vi­sion gov­ern­ing re­course among per­sons who have jointly caused dam­age is ap­plic­able mu­tatis mutandis.

² As a rule, com­pens­a­tion is provided first by those who are li­able in tort and last by those who are deemed li­able by stat­utory pro­vi­sion without be­ing at fault or in breach of con­trac­tu­al ob­lig­a­tion.

¹ Where a per­son has ac­ted in self-de­fence, he is not li­able to pay com­pens­a­tion for dam­age caused to the per­son or prop­erty of the ag­gressor.

² A per­son who dam­ages the prop­erty of an­oth­er in or­der to pro­tect him­self or an­oth­er per­son against im­min­ent dam­age or danger must pay dam­ages at the court’s dis­cre­tion.

³ A per­son who uses force to pro­tect his rights is not li­able in dam­ages if in the cir­cum­stances the as­sist­ance of the au­thor­it­ies could not have been ob­tained in good time and such use of force was the only means of pre­vent­ing the loss of his rights or a sig­ni­fic­ant impair­ment of his abil­ity to ex­er­cise them.

¹ When de­term­in­ing fault or lack of fault and ca­pa­city or in­ca­pa­city to con­sent, the court is not bound by the pro­vi­sions gov­ern­ing crim­in­al ca­pa­city nor by any ac­quit­tal in the crim­in­al court.

² The civil court is like­wise not bound by the ver­dict in the crim­in­al court when de­term­in­ing fault and as­sess­ing com­pens­a­tion.

¹ On grounds of equity, the court may also or­der a per­son who lacks ca­pa­city to con­sent to provide total or par­tial com­pens­a­tion for the dam­age he has caused.

² A per­son who has tem­por­ar­ily lost his ca­pa­city to con­sent is li­able for any dam­age caused when in that state un­less he can prove that said state arose through no fault of his own.

¹ An em­ploy­er is li­able for the dam­age caused by his em­ploy­ees or an­cil­lary staff in the per­form­ance of their work un­less he proves that he took all due care to avoid a dam­age of this type or that the dam­age would have oc­curred even if all due care had been taken.³⁰

² The em­ploy­er has a right of re­course against the per­son who caused the dam­age to the ex­tent that such per­son is li­able in dam­ages.

¹ In the event of dam­age caused by an an­im­al, its keep­er is li­able un­less he proves that in keep­ing and su­per­vising the an­im­al he took all due care or that the dam­age would have oc­curred even if all due care had been taken.

² He has a right of re­course if the an­im­al was pro­voked either by an­oth­er per­son or by an an­im­al be­long­ing to an­oth­er per­son.

³ ...³¹

¹ A per­son in pos­ses­sion of a plot of land is en­titled to seize an­im­als be­long­ing to an­oth­er which cause dam­age on that land and take them in­to his cus­tody as se­cur­ity for his claim for com­pens­a­tion or even to kill them, where jus­ti­fied by the cir­cum­stances.

² He non­ethe­less has an ob­lig­a­tion to no­ti­fy the own­er of such an­im­als without delay or, if the own­er is not known to him, to take the ne­ces­sary steps to trace the own­er.

¹ The own­er of a build­ing or any oth­er struc­ture is li­able for any dam­age caused by de­fects in its con­struc­tion or design or by in­ad­equate main­ten­ance.

² He has a right of re­course against per­sons li­able to him in this re­gard.

¹ A per­son who is at risk of suf­fer­ing dam­age due to a build­ing or struc­ture be­long­ing to an­oth­er may in­sist that the own­er take the ne­ces­sary steps to avert the danger.

² Or­ders giv­en by the po­lice for the pro­tec­tion of per­sons and prop­erty are un­af­fected.

¹ The own­er of a cryp­to­graph­ic key used to gen­er­ate elec­tron­ic sig­na­tures or seals is li­able to third parties for any dam­age they have suffered as a res­ult of re­ly­ing on a val­id cer­ti­fic­ate is­sued by a pro­vider of cer­ti­fic­a­tion ser­vices with­in the mean­ing of the Fed­er­al Act of 18 March 2016³³ on Elec­tron­ic Sig­na­tures.

² The own­er is ab­solved of li­ab­il­ity if he can sat­is­fy the court that he took all the se­cur­ity pre­cau­tions that could reas­on­ably be ex­pec­ted in the cir­cum­stances to pre­vent mis­use of the cryp­to­graph­ic key.

³ The Fed­er­al Coun­cil defines the se­cur­ity pre­cau­tions to be taken pur­su­ant to para­graph 2.

¹ The right to claim dam­ages or sat­is­fac­tion pre­scribes three years from the date on which the per­son suf­fer­ing dam­age be­came aware of the loss, dam­age or in­jury and of the iden­tity of the per­son li­able for it but in any event ten years after the date on which the harm­ful con­duct took place or ceased.³⁵

^1bis In cases death or in­jury, the right to claim dam­ages or sat­is­fac­tion pre­scribes three years from the date on which the per­son suf­fer­ing dam­age be­came aware of the dam­age and of the iden­tity of per­son li­able for it, but in any event twenty years after the date on which the harm­ful con­duct took place or ceased.³⁶

² If the per­son li­able has com­mit­ted a crim­in­al of­fence through his or her harm­ful con­duct, then not­with­stand­ing the fore­go­ing para­graphs the right to dam­ages or sat­is­fac­tion pre­scribes at the earli­est when the right to pro­sec­ute the of­fence be­comes time-barred. If the right to pro­sec­ute is no longer li­able to be­come time-barred be­cause a first in­stance crim­in­al judg­ment has been is­sued, the right to claim dam­ages or sat­is­fac­tion pre­scribes at the earli­est three years after no­tice of the judg­ment is giv­en.³⁷

³ Where the tort has giv­en rise to a claim against the per­son suf­fer­ing dam­age, he may re­fuse to sat­is­fy the claim even if his own claim in tort is time-barred.

¹ The Con­fed­er­a­tion and the can­tons may by way of le­gis­la­tion en­act pro­vi­sions that de­vi­ate from those of this Sec­tion to gov­ern the li­ab­il­ity of civil ser­vants and pub­lic of­fi­cials to pay dam­ages or sat­is­fac­tion for any dam­age they cause in the ex­er­cise of their du­ties.

² The pro­vi­sions of this Sec­tion may not, however, be mod­i­fied by can­ton­al le­gis­la­tion in the case of com­mer­cial du­ties per­formed by civil ser­vants or pub­lic of­fi­cials.

¹ A per­son who has en­riched him­self without just cause at the ex­pense of an­oth­er is ob­liged to make resti­tu­tion.

² In par­tic­u­lar, resti­tu­tion is owed for money be­ne­fits ob­tained for no val­id reas­on what­so­ever, for a reas­on that did not tran­spire or for a reas­on that sub­sequently ceased to ex­ist.

¹ A per­son who has vol­un­tar­ily sat­is­fied a non-ex­ist­ent debt has a right to resti­tu­tion of the sum paid only if he can prove that he paid it in the er­ro­neous be­lief that the debt was owed.

² Resti­tu­tion is ex­cluded where pay­ment was made in sat­is­fac­tion of a debt that has pre­scribe or of a mor­al ob­lig­a­tion.

³ The pro­vi­sions of fed­er­al debt col­lec­tion and bank­ruptcy law gov­ern­ing the right to the resti­tu­tion of pay­ments made in sat­is­fac­tion of non-ex­ist­ent claims are un­af­fected.

There is no right of resti­tu­tion where the re­cip­i­ent can show that he is no longer en­riched at the time the claim for resti­tu­tion is brought, un­less he ali­en­ated the money be­ne­fits in bad faith or in the cer­tain know­ledge that he would be bound to re­turn them.

¹ The re­cip­i­ent is en­titled to re­im­burse­ment of ne­ces­sary and use­ful ex­pendit­ures, al­though where the un­just en­rich­ment was re­ceived in bad faith, the re­im­burse­ment of use­ful ex­pendit­ures must not ex­ceed the amount of ad­ded value as at the time of resti­tu­tion.

² He is not en­titled to any com­pens­a­tion for oth­er ex­pendit­ures, but where no such com­pens­a­tion is offered to him, he may, be­fore re­turn­ing the prop­erty, re­move any­thing he has ad­ded to it provided this is pos­sible without dam­aging it.

No right to resti­tu­tion ex­ists in re­spect of any­thing giv­en with a view to pro­du­cing an un­law­ful or im­mor­al out­come.

¹ The right to claim resti­tu­tion for un­just en­rich­ment pre­scribes three years after the date on which the per­son suf­fer­ing dam­age learned of his or her claim and in any event ten years after the date on which the claim first arose.³⁹

² Where the un­just en­rich­ment con­sists of a claim against the per­son suf­fer­ing dam­age, he or she may re­fuse to sat­is­fy the claim even if his or her own claim for resti­tu­tion has pre­scribed.

An ob­lig­or is not ob­liged to dis­charge his ob­lig­a­tion in per­son un­less so re­quired by the ob­li­gee.

¹ A cred­it­or may re­fuse par­tial pay­ment where the total debt is es­tab­lished and due.

² If the cred­it­or wishes to ac­cept part pay­ment, the debt­or may not re­fuse to settle the part of the debt that he ac­know­ledges is due.

¹ Where in­di­vis­ible per­form­ance is due to sev­er­al ob­li­gees, the ob­lig­or must make per­form­ance to all of them jointly, and each ob­li­gee may de­mand that per­form­ance be made to all of them jointly.

² Where in­di­vis­ible per­form­ance is due by sev­er­al ob­lig­ors, each of them has an ob­lig­a­tion to make per­form­ance in full.

³ Un­less cir­cum­stances dic­tate oth­er­wise, an ob­lig­or who has sat­is­fied the ob­li­gee may then claim pro­por­tion­ate com­pens­a­tion from the oth­er ob­lig­ors and to that ex­tent the claim of the sat­is­fied ob­li­gee passes to him.

¹ If the ob­ject owed is defined only in gen­er­ic terms, the ob­lig­or may choose what ob­ject is giv­en in re­pay­ment un­less oth­er­wise stip­u­lated un­der the leg­al re­la­tion­ship.

² However, the ob­lig­or must not of­fer an ob­ject of less-than-av­er­age qual­ity.

Where an ob­lig­a­tion may be dis­charged by one of sev­er­al al­tern­at­ive types of per­form­ance, the ob­lig­or may choose which per­form­ance to make un­less oth­er­wise stip­u­lated un­der the leg­al re­la­tion­ship.

¹ Where an ob­lig­a­tion in­volves the pay­ment of in­terest but the rate is not set by con­tract, law or cus­tom, in­terest is pay­able at the rate of 5% per an­num.

² Pub­lic law pro­vi­sions gov­ern­ing ab­us­ive in­terest charges are not af­fected.

¹ The place of per­form­ance is de­term­ined by the in­ten­tion of the parties as stated ex­pressly or evid­ent from the cir­cum­stances.

² Ex­cept where oth­er­wise stip­u­lated, the fol­low­ing prin­ciples ap­ply:

1.

pe­cu­ni­ary debts must be paid at the place where the cred­it­or is res­id­ent at the time of per­form­ance;

2.

where a spe­cif­ic ob­ject is owed, it must be de­livered at the place where it was loc­ated when the con­tract was entered in­to;

3.

oth­er ob­lig­a­tions must be dis­charged at the place where the ob­lig­or was res­id­ent at the time they arose.

³ Where the ob­li­gee may re­quire per­form­ance of an ob­lig­a­tion at his dom­i­cile but this has changed since the ob­lig­a­tion arose, thereby sig­ni­fic­antly hinder­ing per­form­ance by the ob­lig­or, the lat­ter is en­titled to render per­form­ance at the ori­gin­al dom­i­cile.

Where no time of per­form­ance is stated in the con­tract or evid­ent from the nature of the leg­al re­la­tion­ship, the ob­lig­a­tion may be dis­charged or called in im­me­di­ately.

¹ A time lim­it ex­pressed as the be­gin­ning or end of a month means the first or last day of the month re­spect­ively.

² A time lim­it ex­pressed as the middle of the month means the fif­teenth day of that month.

¹ Where an ob­lig­a­tion must be dis­charged or some oth­er trans­ac­tion ac­com­plished with­in a cer­tain time lim­it sub­sequent to con­clu­sion of the con­tract, the time lim­it is defined as fol­lows:

1.

where the time lim­it is ex­pressed as a num­ber of days, per­form­ance falls due on the last there­of, not in­clud­ing the date on which the con­tract was con­cluded, and where the num­ber stip­u­lated is eight or fif­teen days, this means not one or two weeks but a full eight or fif­teen days;

2.

where the time lim­it is ex­pressed as a num­ber of weeks, per­form­ance falls due in the last week of the peri­od on the same day of the week as the one on which the con­tract was con­cluded;

3.

where the time lim­it is ex­pressed as a num­ber of months or as a peri­od com­pris­ing sev­er­al months (a year, half-year or quarter), per­form­ance falls due in the last month of the peri­od on the same day of the month as the one on which the con­tract was con­cluded or, where the last month of the peri­od con­tains no such day, on the last day of that month.

The term ‘half-month’ has the same mean­ing as a time lim­it of fif­teen days; if the time lim­it is ex­pressed as a peri­od of one or more months plus one half-month, the fif­teen days are coun­ted last.

² Time lim­its are cal­cu­lated in the same man­ner when stip­u­lated as run­ning from a date oth­er than the date on which the con­tract was con­cluded.

³ Where an ob­lig­a­tion must be dis­charged be­fore a spe­cified time lim­it, per­form­ance must oc­cur be­fore that time ex­pires.

¹ Where the time of per­form­ance or the last day of a time lim­it falls on a Sunday or on a day of­fi­cially re­cog­nised as a pub­lic hol­i­day⁴⁰ at the place of per­form­ance, the time of per­form­ance or the last day of a time lim­it is deemed to be the next work­ing day.

² Any agree­ment to the con­trary is un­af­fected.

Per­form­ance of the ob­lig­a­tion must be made and ac­cep­ted dur­ing nor­mal busi­ness hours on the date stip­u­lated.

Where the agreed time lim­it for per­form­ance is ex­ten­ded, in the ab­sence of an agree­ment to the con­trary, the new time lim­it runs from the first day fol­low­ing ex­piry of the pre­vi­ous time lim­it.

¹ Un­less the terms or nature of the con­tract or the cir­cum­stances in­dic­ate that the parties in­ten­ded oth­er­wise, per­form­ance may be rendered be­fore the date on which the time lim­it ex­pires.

² However, the ob­lig­or is not en­titled to ap­ply a dis­count un­less that dis­count has been agreed or is sanc­tioned by cus­tom.

A party to a bi­lat­er­al con­tract may not de­mand per­form­ance un­til he has dis­charged or offered to dis­charge his own ob­lig­a­tion, un­less the terms or nature of the con­tract al­low him to do so at a later date.

¹ Where one party to a bi­lat­er­al con­tract has be­come in­solv­ent, in par­tic­u­lar by vir­tue of bank­ruptcy pro­ceed­ings or ex­e­cu­tion without sat­is­fac­tion, and this de­teri­or­a­tion in its fin­an­cial po­s­i­tion jeop­ard­ises the claim of the oth­er party, the lat­ter may with­hold per­form­ance un­til se­cur­ity has been provided for the con­sid­er­a­tion.

² He may with­draw from the con­tract if, on re­quest, no such se­cur­ity is provided with­in a reas­on­able time.

¹ Pe­cu­ni­ary debts must be dis­charged in leg­al tender of the cur­rency in which the debt was in­curred.

²A debt ex­pressed in a cur­rency oth­er than the na­tion­al cur­rency of the place of pay­ment may be dis­charged in that na­tion­al cur­rency at the rate of ex­change that ap­plies on the day it falls due, un­less lit­er­al per­form­ance is re­quired by in­clu­sion in the con­tract of the ex­pres­sion ‘ac­tu­al cur­rency’ or words to that ef­fect.

¹ A debt­or may off­set a part pay­ment against the debt prin­cip­al only if he is not in ar­rears with in­terest pay­ments and ex­penses.

² Where a cred­it­or has re­ceived guar­an­tees, pledges or oth­er se­cur­ity for a por­tion of his claim, the debt­or may not off­set a part pay­ment against that por­tion in pref­er­ence to less well se­cured por­tions of the claim.

¹ A debt­or with sev­er­al debts to the same cred­it­or is en­titled to state at the time of pay­ment which debt he means to re­deem.

² In the ab­sence of any state­ment from the debt­or, the pay­ment will be al­loc­ated to the debt in­dic­ated by the cred­it­or in his re­ceipt, un­less the debt­or ob­jects im­me­di­ately.

¹ Where no val­id debt re­demp­tion state­ment has been made and the re­ceipt does not in­dic­ate how the pay­ment has been al­loc­ated, it is al­loc­ated to whichever debt is due or, if sev­er­al are due, to the debt that first gave rise to en­force­ment pro­ceed­ings against the debt­or or, in the ab­sence of such pro­ceed­ings, to the debt that fell due first.

² Where sev­er­al debts fell due at the same time, the pay­ment is off­set against them pro­por­tion­ately.

³ If none of the debts is yet due, the pay­ment is al­loc­ated to the one of­fer­ing the least se­cur­ity for the cred­it­or.

¹ A debt­or mak­ing a pay­ment is en­titled to de­mand a re­ceipt and, provided the debt is fully re­deemed, the re­turn or an­nul­ment of the bor­row­er’s note.

² If the debt is not com­pletely re­deemed or the bor­row­er’s note con­fers oth­er rights on the cred­it­or, the debt­or is en­titled to de­mand only a re­ceipt and that a re­cord of the pay­ment be entered on the bor­row­er’s note.

¹ Where in­terest or oth­er peri­od­ic pay­ments are due, a cred­it­or un­re­servedly is­su­ing a re­ceipt for a later peri­od­ic pay­ment is pre­sumed to have re­ceived all pre­vi­ous peri­od­ic pay­ments.

² If he is­sues a re­ceipt for re­demp­tion of the debt prin­cip­al, he is pre­sumed to have re­ceived the in­terest.

³ The re­turn of the bor­row­er’s note to the debt­or gives rise to a pre­sump­tion that the debt has been re­deemed.

¹ If the cred­it­or claims to have lost the bor­row­er’s note, on re­deem­ing the debt, the debt­or may in­sist that the cred­it­or de­clare by pub­lic deed or not­ar­ised doc­u­ment that the bor­row­er’s note has been an­nulled and the debt re­deemed.

² The pro­vi­sions gov­ern­ing an­nul­ment of se­cur­it­ies are re­served.

The ob­li­gee is in de­fault if he re­fuses without good cause to ac­cept per­form­ance prop­erly offered to him or to carry out such pre­par­a­tions as he is ob­liged to make and without which the ob­lig­or can­not render per­form­ance.

¹ Where the ob­li­gee is in de­fault, the ob­lig­or is en­titled to de­pos­it the ob­ject at the ex­pense and risk of the ob­li­gee, thereby dis­char­ging his ob­lig­a­tion.

²The court de­cides which place should serve as de­pos­it­ary; however, mer­chand­ise may be de­pos­ited in a ware­house without need for a court de­cision.⁴²

¹ Where the char­ac­ter­ist­ics of the ob­ject or the nature of the busi­ness pre­clude a de­pos­it or the ob­ject is per­ish­able or gives rise to main­ten­ance costs or sub­stan­tial stor­age costs, after hav­ing giv­en form­al warn­ing to the ob­li­gee and with the court’s per­mis­sion, the ob­lig­or may dis­pose of the ob­ject by open sale and de­pos­it the sale pro­ceeds.

² Where the ob­ject has a quoted stock ex­change or mar­ket price or its value is low in pro­por­tion to the costs in­volved, the sale need not be open and the court may au­thor­ise it without pri­or warn­ing.

¹ The ob­lig­or is en­titled to take back the ob­ject de­pos­ited provid­ing the ob­li­gee has not de­clared that he ac­cepts it or provid­ing the de­pos­it has not had the ef­fect of re­deem­ing a pledge.

² As soon as the ob­ject is taken back, the claim and all ac­cess­ory rights be­come ef­fect­ive again.

Where the ob­lig­a­tion does not re­late to ob­jects and the ob­li­gee is in de­fault, the ob­lig­or may with­draw from the con­tract in ac­cord­ance with the pro­vi­sions gov­ern­ing de­fault of the ob­lig­or.

The ob­lig­or is en­titled to de­pos­it his per­form­ance or to with­draw from the con­tract, as in the case of de­fault on the part of the ob­li­gee, where per­form­ance can­not be rendered either to the ob­li­gee or to his rep­res­ent­at­ive for some oth­er reas­on per­tain­ing to the ob­li­gee or where through no fault of the ob­lig­or there is un­cer­tainty as to the iden­tity of the ob­li­gee.

¹ An ob­lig­or who fails to dis­charge an ob­lig­a­tion at all or as re­quired must make amends for the res­ult­ing dam­age un­less he can prove that he was not at fault.

² The pro­ced­ure for debt en­force­ment is gov­erned by the pro­vi­sions of the Fed­er­al Act of 11 April 1889⁴³ on Debt Col­lec­tion and Bank­ruptcy and the Civil Pro­ced­ure Code of 19 Decem­ber 2008⁴⁴ (CPC).⁴⁵

¹ Where the ob­lig­a­tion is to take cer­tain ac­tion, the ob­li­gee may without pre­ju­dice to his claims for dam­ages ob­tain au­thor­ity to per­form the ob­lig­a­tion at the ob­lig­or’s ex­pense.

² Where the ob­lig­a­tion is to re­frain from tak­ing cer­tain ac­tion, any breach of such ob­lig­a­tion renders the ob­lig­or li­able to make amends for the dam­age caused.

³ In ad­di­tion, the ob­li­gee may re­quest that the situ­ation con­sti­tut­ing a breach of the ob­lig­a­tion be rec­ti­fied and may ob­tain au­thor­ity to rec­ti­fy it at the ob­lig­or’s ex­pense.

¹ The ob­lig­or is gen­er­ally li­able for any fault at­trib­ut­able to him.

² The scope of such li­ab­il­ity is de­term­ined by the par­tic­u­lar nature of the trans­ac­tion and in par­tic­u­lar is judged more le­ni­ently where the ob­lig­or does not stand to gain from the trans­ac­tion.

³ In oth­er re­spects, the pro­vi­sions gov­ern­ing li­ab­il­ity in tort ap­ply mu­tatis mutandis to a breach of con­tract.

¹ Any agree­ment pur­port­ing to ex­clude li­ab­il­ity for un­law­ful in­tent or gross neg­li­gence in ad­vance is void.

² At the dis­cre­tion of the court, an ad­vance ex­clu­sion of li­ab­il­ity for minor neg­li­gence may be deemed void provided the party ex­clud­ing li­ab­il­ity was in the oth­er party’s ser­vice at the time the waiver was made or the li­ab­il­ity arises in con­nec­tion with com­mer­cial activ­it­ies con­duc­ted un­der of­fi­cial li­cence.

³ The spe­cif­ic pro­vi­sions gov­ern­ing in­sur­ance policies are un­af­fected.

¹ A per­son who del­eg­ates the per­form­ance of an ob­lig­a­tion or the ex­er­cise of a right arising from a con­trac­tu­al ob­lig­a­tion to an as­so­ci­ate, such as a mem­ber of his house­hold or an em­ploy­ee is li­able to the oth­er party for any dam­age the as­so­ci­ate causes in car­ry­ing out such tasks, even if their del­eg­a­tion was en­tirely au­thor­ised.⁴⁶

² This li­ab­il­ity may be lim­ited or ex­cluded by pri­or agree­ment.

³ If the ob­li­gee is in the ob­lig­or’s ser­vice or if the li­ab­il­ity arises in con­nec­tion with com­mer­cial activ­it­ies con­duc­ted un­der of­fi­cial li­cence, any ex­clu­sion of li­ab­il­ity by agree­ment may ap­ply at most to minor neg­li­gence.

¹ Where an ob­lig­a­tion is due, the ob­lig­or is in de­fault as soon as he re­ceives a form­al re­mind­er from the ob­li­gee.

² Where a dead­line for per­form­ance of the ob­lig­a­tion has been set by agree­ment or as a res­ult of a duly ex­er­cised right of ter­min­a­tion re­served by one party, the ob­lig­or is auto­mat­ic­ally in de­fault on ex­piry of the dead­line.

¹ An ob­lig­or in de­fault is li­able in dam­ages for late per­form­ance and even for ac­ci­dent­al dam­age.

² He may dis­charge him­self from such li­ab­il­ity by prov­ing that his de­fault oc­curred through no fault of his own or that the ob­ject of per­form­ance would have suffered the ac­ci­dent­al dam­age to the det­ri­ment of the ob­li­gee even if per­form­ance had taken place promptly.

¹ A debt­or in de­fault on pay­ment of a pe­cu­ni­ary debt must pay de­fault in­terest of 5% per an­num even where a lower rate of in­terest was stip­u­lated by con­tract.

² Where the con­tract en­vis­ages a rate of in­terest high­er than 5%, wheth­er dir­ectly or by agree­ment of a peri­od­ic bank com­mis­sion, such high­er rate of in­terest may also be ap­plied while the debt­or re­mains in de­fault.

³ In busi­ness deal­ings, where the nor­mal bank dis­count rate at the place of pay­ment is high­er than 5%, de­fault in­terest may be cal­cu­lated at the high­er rate.

¹ A debt­or in de­fault on pay­ment of in­terest, an­nu­it­ies or gifts is li­able for de­fault in­terest only as of the day on which en­force­ment pro­ceed­ings are ini­ti­ated or leg­al ac­tion is brought.

² Any agree­ment to the con­trary is as­sessed by the court in ac­cord­ance with the pro­vi­sions gov­ern­ing pen­alty clauses.

³ De­fault in­terest is nev­er pay­able on de­fault in­terest.

¹ Where the value of the dam­age suffered by the cred­it­or ex­ceeds the de­fault in­terest, the debt­or is li­able also for this ad­di­tion­al dam­age un­less he can prove that he is not at fault.

² Where the ad­di­tion­al dam­age can be an­ti­cip­ated, the court may award com­pens­a­tion for such dam­age in its judg­ment on the main claim.

¹ Where the ob­lig­or un­der a bi­lat­er­al con­tract is in de­fault, the ob­li­gee is en­titled to set an ap­pro­pri­ate time lim­it for sub­sequent per­form­ance or to ask the court to set such time lim­it.

² If per­form­ance has not been rendered by the end of that time lim­it, the ob­li­gee may com­pel per­form­ance in ad­di­tion to su­ing for dam­ages in con­nec­tion with the delay or, provided he makes an im­me­di­ate de­clar­a­tion to this ef­fect, he may in­stead fore­go sub­sequent per­form­ance and either claim dam­ages for non-per­form­ance or with­draw from the con­tract al­to­geth­er.

No time lim­it need be set:

1.

where it is evid­ent from the con­duct of the ob­lig­or that a time lim­it would serve no pur­pose;

2.

where per­form­ance has be­come point­less to the ob­li­gee as a res­ult of the ob­lig­or’s de­fault;

3.

where the con­tract makes it clear that the parties in­ten­ded that per­form­ance take place at or be­fore a pre­cise point in time.

¹ An ob­li­gee with­draw­ing from a con­tract may re­fuse the prom­ised con­sid­er­a­tion and de­mand the re­turn of any per­form­ance already made.

² In ad­di­tion he may claim dam­ages for the lapse of the con­tract, un­less the ob­lig­or can prove that he was not at fault.

A third party who sat­is­fies the cred­it­or is by op­er­a­tion of law sub­rog­ated to his rights:

1.

if he re­deems an ob­ject giv­en in pledge for the debt of an­oth­er and he owns said ob­ject or has a lim­ited right in rem in it;

2.

if the debt­or no­ti­fies the cred­it­or that the third party who is pay­ing is to take the cred­it­or’s place.

A per­son who gives an un­der­tak­ing to en­sure that a third party per­forms an ob­lig­a­tion is li­able in dam­ages for non-per­form­ance by said third party.

¹ A per­son who, act­ing in his own name, has entered in­to a con­tract whereby per­form­ance is due to a third party is en­titled to com­pel per­form­ance for the be­ne­fit of said third party.

² The third party or his leg­al suc­cessors have the right to com­pel per­form­ance where that was the in­ten­tion of the con­tract­ing parties or is the cus­tom­ary prac­tice.

³ In this case the ob­li­gee may no longer re­lease the ob­lig­or from his ob­lig­a­tions once the third party has no­ti­fied the ob­lig­or of his in­ten­tion to ex­er­cise that right.

Where an em­ploy­er has taken out li­ab­il­ity in­sur­ance and his em­ploy­ee has con­trib­uted at least half of the premi­ums, the em­ploy­ee has sole claim to the policy be­ne­fits.

¹ Where a claim ceases to ex­ist by vir­tue of be­ing sat­is­fied or in some oth­er man­ner, all ac­cess­ory rights such as guar­an­tees and charges are like­wise ex­tin­guished.

² In­terest that has ac­crued may be re­claimed only if that right is con­ferred on the ob­li­gee by the con­tract or is evid­ent from the cir­cum­stances.

³ The spe­cif­ic pro­vi­sions gov­ern­ing charges on im­mov­able prop­erty, se­cur­it­ies and com­pos­i­tion agree­ments are un­af­fected.

No par­tic­u­lar form is re­quired for the ex­tinc­tion of a claim by agree­ment even where the ob­lig­a­tion it­self could not be as­sumed without sat­is­fy­ing cer­tain form­al re­quire­ments re­quired by law or elec­ted by the parties.

¹ Where a new debt re­la­tion­ship is con­trac­ted, there is no pre­sump­tion of nova­tion in re­spect of an old one.

² In par­tic­u­lar, in the ab­sence of agree­ment to the con­trary, nova­tion does not res­ult from sig­na­ture of a bill of ex­change in re­spect of an ex­ist­ing debt or from the is­sue of a new bor­row­er’s note or con­tract of surety.

¹ The mere post­ing of in­di­vidu­al entries in a cur­rent ac­count does not res­ult in nova­tion.

² However, there is a pre­sump­tion of nova­tion if the bal­ance on the ac­count has been drawn and ac­know­ledged.

³ Where spe­cial se­cur­ity ex­ists for one of the ac­count entries, un­less oth­er­wise agreed, such se­cur­ity is re­tained even if the bal­ance on the ac­count is drawn and ac­know­ledged.

¹ An ob­lig­a­tion is deemed ex­tin­guished by mer­ger where the ca­pa­cit­ies of cred­it­or and debt­or are united in the same en­tity.

² In the event of de-mer­ger, the ob­lig­a­tion is re­vived.

³ The spe­cif­ic pro­vi­sions gov­ern­ing charges on im­mov­able prop­erty and se­cur­it­ies are un­af­fected.

¹ An ob­lig­a­tion is deemed ex­tin­guished where its per­form­ance is made im­possible by cir­cum­stances not at­trib­ut­able to the ob­lig­or.

² In a bi­lat­er­al con­tract, the ob­lig­or thus re­leased is li­able for the con­sid­er­a­tion already re­ceived pur­su­ant to the pro­vi­sions on un­just en­rich­ment and loses his counter-claim to the ex­tent it has not yet been sat­is­fied.

³ This does not ap­ply to cases in which, by law or con­trac­tu­al agree­ment, the risk passes to the ob­li­gee pri­or to per­form­ance.

¹ Where two per­sons owe each oth­er sums of money or per­form­ance of identic­al ob­lig­a­tions, and provided that both claims have fallen due, each party may set off his debt against his claim.

² The debt­or may as­sert his right of set-off even if the coun­ter­vail­ing claim is con­tested.

³ A time-barred claim may be set off provided that it was not time-barred at the time it be­came eli­gible for set-off.

A surety may re­fuse to sat­is­fy the cred­it­or to the ex­tent that the prin­cip­al debt­or has a right of set-off.

A per­son who has un­der­taken an ob­lig­a­tion in fa­vour of a third party may not set off that ob­lig­a­tion against his own claims against said party.

¹ Where the debt­or is bank­rupt, his cred­it­ors may set off their claims, even if they are not due, against the claims that the ad­ju­dic­ated bank­rupt holds against them.

² The ex­clu­sion or chal­lenge of set-off in the event of the debt­or’s bank­ruptcy is gov­erned by the pro­vi­sions of debt col­lec­tion and bank­ruptcy law.

¹ A set-off takes place only if the debt­or no­ti­fies the cred­it­or of his in­ten­tion to ex­er­cise his right of set-off.

² Once this has oc­curred, to the ex­tent that they can­cel each oth­er out, the claim and coun­ter­vail­ing claim are deemed to have been sat­is­fied as of the time they first be­came sus­cept­ible to set-off.

³ The spe­cial cus­toms re­lat­ing to com­mer­cial cur­rent ac­counts are un­af­fected.

The fol­low­ing ob­lig­a­tions may not be dis­charged by set-off ex­cept with the cred­it­or’s con­sent:

1.

ob­lig­a­tions to re­store or re­place ob­jects that have been de­pos­ited, un­law­fully re­moved or re­tained in bad faith;

2.

ob­lig­a­tions that by their very nature re­quire ac­tu­al per­form­ance to be rendered to the cred­it­or, such as main­ten­ance claims and salary pay­ments that are ab­so­lutely ne­ces­sary for the up­keep of the cred­it­or and his fam­ily;

3.

ob­lig­a­tions un­der pub­lic law in fa­vour of the state au­thor­it­ies.

The debt­or may waive his right of set-off in ad­vance.

All claims pre­scribe after ten years un­less oth­er­wise provided by fed­er­al civil law.

The fol­low­ing pre­scribe after five years:

1.

claims for ag­ri­cul­tur­al and com­mer­cial rent and oth­er rent, in­terest on cap­it­al and all oth­er peri­od­ic pay­ments;

2.

claims in con­nec­tion with de­liv­ery of food­stuffs, pay­ments for board and lodging and hotel ex­penses;

3.⁴⁷

claims in con­nec­tion with work car­ried out by trades­men and crafts­men, pur­chases of re­tail goods, med­ic­al treat­ment, pro­fes­sion­al ser­vices provided by ad­voc­ates, so­li­cit­ors, leg­al rep­res­ent­at­ives and not­ar­ies, and work per­formed by em­ploy­ees for their em­ploy­ers.

Claims for dam­ages or sat­is­fac­tion arising from an in­jury or death in breach of con­tract pre­scribe three years from the date on which the per­son suf­fer­ing dam­age be­came aware of the dam­age, but in any event twenty years after the date on which the harm­ful con­duct took place or ceased.

The pre­script­ive peri­ods laid down un­der this Title may not be altered by con­tract.

¹ The pre­script­ive peri­od com­mences as soon as the debt is due.

² Where a debt falls due on no­ti­fic­a­tion, the pre­script­ive peri­od com­mences on the first date on which such no­tice is ad­miss­ible.

¹ In the case of life an­nu­it­ies and sim­il­ar peri­od­ic ob­lig­a­tions, the pre­script­ive peri­od for the prin­cip­al claim com­mences on the date on which the first in­stal­ment in ar­rears was due.

² When the prin­cip­al claim pre­scribes, so too do all claims in re­spect of in­di­vidu­al pay­ments.

¹ When com­put­ing pre­script­ive peri­ods, the date on which the pre­script­ive peri­od com­mences is not in­cluded and the peri­od is not deemed to have ex­pired un­til the end of its last day.

² In oth­er re­spects the pro­vi­sions gov­ern­ing com­pu­ta­tion of time lim­its for per­form­ance also ap­ply to pre­scrip­tion.

When the prin­cip­al claim pre­scribes, so too do all claims for in­terest and oth­er ac­cess­ory claims.

¹ The pre­script­ive peri­od does not com­mence and, if it has be­gun, is sus­pen­ded:

1.⁴⁹

in re­spect of the claims of chil­dren against their par­ents, un­til the chil­dren reach the age of ma­jor­ity;

2.⁵⁰

in re­spect of the claim of per­son lack­ing ca­pa­city of judge­ment against his or her carer, for the dur­a­tion of the ad­vance care dir­ect­ive;

3.

in re­spect of the claims of spouses against each oth­er, for the dur­a­tion of the mar­riage;

3^bis.⁵¹

in re­spect of the claims of re­gistered part­ners against each oth­er, for the dur­a­tion of the re­gistered part­ner­ship;

4.⁵²

in re­spect of the claim of an em­ploy­ee against his em­ploy­er with whom he shares a house­hold, for the dur­a­tion of the em­ploy­ment re­la­tion­ship;

5.

for as long as the debt­or has the usu­fruct of the claim;

6.⁵³

for as long as the claim can­not be brought be­fore a court for ob­ject­ive reas­ons;

7.⁵⁴

for claims made by or against a test­at­or, for the dur­a­tion of the pub­lic in­vent­ory pro­ced­ure;

8.⁵⁵

for the dur­a­tion of set­tle­ment talks, me­di­ation pro­ceed­ings or any oth­er ex­tra-ju­di­cial dis­pute res­ol­u­tion pro­ced­ure, provided the parties agree there­on in writ­ing.

² The pre­script­ive peri­od be­gins or re­sumes at the end of the day on which the cause of pre­ven­tion or sus­pen­sion ceases to ap­ply.

³ The spe­cif­ic pro­vi­sions of debt col­lec­tion and bank­ruptcy law are un­af­fected.

The pre­script­ive peri­od is in­ter­rup­ted:

1.

if the debt­or ac­know­ledges the claim and in par­tic­u­lar if he makes in­terest pay­ments or part pay­ments, gives an item in pledge or provides surety;

2.⁵⁶

by debt en­force­ment pro­ceed­ings, an ap­plic­a­tion for con­cili­ation, sub­mis­sion of a state­ment of claim or de­fence to a court or ar­bit­ral tribunal, or a pe­ti­tion for bank­ruptcy.

¹ Where the pre­script­ive peri­od for one per­son who is jointly and sev­er­ally li­able for a debt or jointly li­able for in­di­vis­ible per­form­ance is in­ter­rup­ted, it is like­wise in­ter­rup­ted for all oth­er co-ob­lig­ors, provided the in­ter­rup­tion is due to an act by the cred­it­or.

² Where the pre­script­ive peri­od for the prin­cip­al debt­or is in­ter­rup­ted, it is like­wise in­ter­rup­ted for the surety, provided the in­ter­rup­tion is due to an act by the cred­it­or.

³ However, where the pre­script­ive peri­od for the guar­ant­or is in­ter­rup­ted, it is not in­ter­rup­ted for the prin­cip­al debt­or.

⁴ An in­ter­rup­tion ef­fect­ive against an in­surer is also ef­fect­ive against the debt­or and vice-versa, provided there is a dir­ect claim against the in­surer.

¹ A new pre­script­ive peri­od com­mences as of the date of the in­ter­rup­tion.

² If the claim has been ac­know­ledged by pub­lic deed or con­firmed by court judg­ment, the new pre­script­ive peri­od is al­ways ten years.

¹ Where the pre­script­ive peri­od has been in­ter­rup­ted by an ap­plic­a­tion for con­cili­ation, or the sub­mis­sion of a state­ment of claim or de­fence, a new pre­script­ive peri­od com­mences when the dis­pute is settled be­fore the rel­ev­ant court.⁵⁸

² Where the pre­script­ive peri­od has been in­ter­rup­ted by debt en­force­ment pro­ceed­ings, a new pre­script­ive peri­od com­mences as of each step taken in the pro­ceed­ings.

³ Where the pre­script­ive peri­od has been in­ter­rup­ted by a pe­ti­tion for bank­ruptcy, a new pre­script­ive peri­od com­mences as of the time spe­cified by bank­ruptcy law at which it once again be­comes pos­sible to as­sert the claim.

Where two or more debt­ors are jointly and sev­er­ally li­able, the right of re­course of each debt­or who has sat­is­fied the cred­it­or pre­scribes three years from date on which he sat­is­fies the cred­it­or and is aware of his co-debt­ors.

The ex­ist­ence of a charge on chat­tels does not pre­vent the pre­scrip­tion of a claim, al­though the fact of its pre­scrip­tion does not pre­vent the cred­it­or from as­sert­ing his right un­der the charge.

¹ The debt­or may waive the right to ob­ject on the grounds of pre­scrip­tion, in each case for a max­im­um of ten years from the start of the pre­script­ive peri­od.⁶¹

^1bis The waiver must be made in writ­ing. Only the user of gen­er­al terms and con­di­tions of busi­ness may waive the de­fence of pre­scrip­tion in such terms and con­di­tions.⁶²

² A waiver gran­ted by a joint and sev­er­al debt­or does not bind the oth­er joint and sev­er­al debt­ors.

³ The same ap­plies to co-ob­lig­ors of an in­di­vis­ible debt and to the surety in the event of waiver by the prin­cip­al debt­or.

⁴ A waiver gran­ted by a debt­or shall bind the debt­or’s in­surers and vice-versa, provided a dir­ect claim ex­ists against the in­surer.⁶³

A court may not ap­ply the pre­script­ive de­fence of its own ac­cord.