Section Three: Earnest Money, Forfeit Money, Salary Deductions and Contractual Penalties |
Art. 158
A. Earnest and forfeit money 1 Earnest money paid on entering into a contract is deemed a mark of the party’s intention to honour the contract rather than a forfeit. 2 Unless otherwise stipulated by agreement or local custom, the earnest money is retained by the recipient without being deducted from his claim. 3 Where a sum of forfeit money has been agreed, the party that paid the sum may withdraw from the contract by relinquishing it and the party that received it by returning twice the amount. |
Art. 15964
B. ... 64Repealed by No II Art. 6 No 1 of the FA of 25 June 1971, with effect from 1 Jan. 1972 (AS 1971 1465; BBl 1967 II 241). See also the Final and Transitional Provisions of Title X, at the end of this Code. |
Art. 160
C. Contractual penalty I. Rights of the creditor 1. Relation between penalty and contractual performance 1 Where a penalty is promised for non-performance or defective performance of a contract, unless otherwise agreed, the creditor may only compel performance or claim the penalty. 2 Where the penalty is promised for failure to comply with the stipulated time or place of performance, the creditor may claim the penalty in addition to performance provided he has not expressly waived such right or accepted performance without reservation. 3 The foregoing does not apply if the debtor can prove that he has the right to withdraw from the contract by paying the penalty. |
Art. 162
3. Forfeiture of part payments 1 Any agreement that part payments are forfeited to the creditor in the event the contract is terminated shall be determined in accordance with the provisions governing contractual penalties. 2 ...65 65 Repealed by Annex 2 No II 1 to the FA of 23 March 2001 on Consumer Credit, with effect from 1 Jan. 2003 (AS 2002 3846; BBl 1999 III 3155). |
Art. 163
II. Amount, nullity and reduction of the penalty 1 The parties are free to determine the amount of the contractual penalty. 2 The penalty may not be claimed where its purpose is to reinforce an unlawful or immoral undertaking or, unless otherwise agreed, where performance has been prevented by circumstances beyond the debtor’s control. 3 At its discretion, the court may reduce penalties that it considers excessive. |
Title Five: Assignment of Claims and Assumption of Debt |
Art. 164
A. Assignment of claims I. Requirements 1. Voluntary assignment a. Admissibility 1 A creditor may assign a claim to which he is entitled to a third party without the debtor’s consent unless the assignment is forbidden by law or contract or prevented by the nature of the legal relationship. 2 The debtor may not object to the assignment on the grounds that it was excluded by agreement against any third party who acquires the claim in reliance on a written acknowledgement of debt in which there is no mention of any prohibition of assignment. |
Art. 166
2. Assignment by law or court order Where legal provisions or a court judgment require a claim to be assigned to another person, the assignment is effective towards third parties without need for any particular form or even for a statement of intent by the former creditor. |
Art. 167
II. Effect of assignment 1. Position of the debtor a. Payment made in good faith Where, before the assignment has been brought to his attention by the assignor or the assignee, the debtor makes payment in good faith to his former creditor or, in the case of multiple assignments, to a subsequent assignee who acquired the claim, he is validly released from his obligation. |
Art. 168
b. Refusal of payment and deposit 1 In the event of dispute as to entitlement, the debtor may refuse payment and discharge his obligation by depositing the payment with the court. 2 He makes payment at his own risk if he does so with knowledge of the dispute. 3 Where legal action is pending and the debt is due, each party may require the debtor to deposit the payment with the court. |
Art. 169
c. Objections raised by the debtor 1 Any objection that could have been made to the assignor’s claim may also be made to the assignee if it applied at the time the debtor first learned of the assignment. 2 If the debtor held a countervailing claim that was not yet due at that time, he may nonetheless set it off against the assigned claim provided it did not fall due any later than the assigned claim. |
Art. 170
2. Transfer of preferential and accessory rights, documents and evidence 1 The assignment of a claim includes all preferential and accessory rights except those that are inseparable from the person of the assignor. 2 The assignor is bound to surrender to the assignee the legal document pertaining to the debt together with all available evidence thereof and to furnish him with all information necessary to assert the claim. 3 Arrears of interest are presumed assigned with the main debt. |
Art. 171
3. Warranty a. In general 1 Where assignment is made for valuable consideration, the assignor warrants that the claim exists at the time of assignment. 2 However, he does not warrant that the debtor is solvent unless he has undertaken to do so. 3 Where there is no valuable consideration for the assignment, the assignor does not even warrant that the claim exists. |
Art. 172
b. In the case of assignment by way of satisfaction Where a creditor has assigned his claim in payment without fixing the amount at which the claim should be credited, the assignee need credit only the amount that he actually receives from the debtor or would have been able to obtain by exercising all due diligence. |
Art. 173
c. Scope of liability 1 The assignor is liable under warranty only for the valuable consideration received plus interest and in addition for the costs of the assignment and of any unsuccessful proceedings against the debtor. 2 Where a claim is assigned by operation of law, the previous creditor warrants neither the existence of the claim nor the solvency of the debtor. |
Art. 175
B. Assumption of debt I. Debtor and debt acquirer 1 A person who promises to answer for the debt of another assumes an obligation to release the debtor from his obligation either by satisfying the creditor or by taking the debtor’s place with the consent of the creditor. 2 The debtor may not compel performance of the obligation by the party assuming the debt until the debtor has discharged his obligations under the debt assumption contract. 3 If the previous debtor is not released from his debt, he may request that the new debtor furnish security. |
Art. 176
II. Contract between debt acquirer and creditor 1. Offer and acceptance 1 The accession of the debt acquirer to the debt relationship in lieu of and with the release of the previous debtor is effected by means of a contract between the debt acquirer and the creditor. 2 An offer to enter into the contract may consist of notification of the creditor that the debt is to be assumed. Notification must be made either by the debt acquirer or, on his authority, by the previous debtor. 3 The creditor’s acceptance may be express or implied by the circumstances and is presumed once the creditor unreservedly takes receipt of a payment from the debt acquirer or consents to some other act performed by him in the capacity of debtor. |
Art. 177
2. Lapse of offer 1 The creditor may declare his acceptance at any time, but the debt acquirer and the former debtor may set the creditor a time limit for acceptance and where this expires without communication from the creditor, he is deemed to have refused the offer. 2 If the creditor agrees some other debt assumption arrangement before the offer has been accepted and the new prospective debt acquirer has also made an offer to the creditor, the party that made the previous offer is no longer bound thereby. |
Art. 178
III. Effect of change of debtor 1. Accessory rights 1 The rights that are accessory to the debt remain unaffected by the change of debtor save to the extent that they are inseparable from the person of the previous debtor. 2 However, pledges and sureties provided by third parties remain in place in favour of the creditor only provided the pledgor or surety has consented to the assumption of the debt. |
Art. 179
2. Objections 1 Any defences arising from the debt relationship are available to the new debtor as they were to the former. 2 The new debtor may not invoke the defences personally available to the old debtor against the creditor, unless otherwise provided in the contract with the creditor. 3 Where the debt acquirer has defences arising against the debtor from the legal relationship underlying the assumption of debt, these may not be invoked against the creditor. |
Art. 180
IV. Failure of debt assumption contract 1 In the event of the failure of the debt assumption contract, the previous debtor’s obligation is revived with all accessory rights, subject to the rights of bona fide third parties. 2 The creditor may also claim damages from the would-be debt acquirer for any damage suffered as a result of the loss of security previously obtained or for similar reasons, unless the would-be debt acquirer can prove that he was in no way to blame for the failure of the debt assumption contract or the damage caused to the creditor. |
Art. 181
V. Assignment of assets or a business with assets and liabilities 1 A person to whom assets or a business with assets and liabilities are assigned automatically becomes liable to the creditors of the debts encumbering such assets or business on notification of the assignment to the creditors by him or by publication in official journals. 2 However, the previous debtor remains jointly and severally liable with the new debtor for three years, commencing on the date of notification or publication in the case of claims already due and on the maturity date in the case of claims falling due subsequently.66 3 In other respects, an assumption of debt of this kind has the same effect as the assumption of an individual debt. 4 The takeover by assignment of assets or businesses of commercial enterprises, cooperatives, associations, foundations or sole proprietorships registered in the commercial register is governed by the provisions of the Mergers Act of 3 October 200367.68 66 Amended by Annex No 2 to the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 2004 2617; BBl 2000 4337). 68 Inserted by Annex No 2 to the Mergers Act of 3 Oct. 2003 (AS 2004 2617; BBl 2000 4337). Amended by No I 3 of the FA of 16 Dec. 2005 (Law on Limited Liability Companies and Amendments to the Law on Companies limited by Shares, Cooperatives, the Commercial Register and Business Names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969). |
Art. 18269
VI. ... 69 Repealed by Annex No 2 to the Mergers Act of 3 Oct. 2003, with effect from 1 July 2004 (AS 2004 2617; BBl 2000 4337). |
Division Two: Types of Contractual Relationship |
Title Six: Sale and Exchange |
Section Two: The Chattel Sale |
Art. 187
A. Object 1 Any sale in which the object is not land, property or a right in rem entered in the land register is a chattel sale. 2 Where constituent parts of land, such as crops, architectural salvage materials or quarry products, are separated therefrom for transfer to the acquirer, their sale constitutes a chattel sale. |
Art. 189
2. Transport costs 1 Unless otherwise provided by agreement or custom, if the object sold must be transported to a place other than the place of performance, the buyer bears the costs of such transport. 2 The seller is presumed to have borne the transport costs where free delivery has been agreed. 3 Where delivery free of shipping costs and duties has been agreed, the seller is deemed to have assumed the export, transit and import duties payable during transport but not the consumer tax levied on receipt of the object. |
Art. 190
3. Delivery default a. Withdrawal from commercial transactions 1 Where in commercial transactions the contract specifies a time limit for delivery and the seller is in default, the presumption is that the buyer will forego delivery and claim damages for non-performance. 2 However, if the buyer prefers to demand delivery, he must inform the seller without delay on expiry of the time limit. |
Art. 191
b. Liability for and computation of damages 1 A seller who fails to discharge his contractual obligation is liable for the resultant damage to the buyer. 2 The buyer in a commercial transaction is entitled to compensation of the difference between the sale price and the price he has paid in good faith to replace the object that was not delivered to him. 3 In the case of goods with a market or stock exchange price, the buyer need not buy the replacement object but is entitled to claim as damages the difference between the contractual sale price and the market price at the time of performance. |
Art. 192
II. Warranty of title 1. Warranty obligation 1 The seller is obliged to transfer the purchased goods to the buyer free from any rights enforceable by third parties against the buyer that already exist at the time the contract is concluded. 2 Where on conclusion of the contract the buyer was aware of the existence of such rights, the seller is not bound unless by any express warranty given. 3 Any agreement to exclude or limit the warranty obligation is void if the seller has intentionally omitted to mention the right of a third party. |
Art. 19370
2. Procedure a. Third-party notice 1 The requirements for and effects of the third-party notice are governed by the CPC71. 2 In the event of failure to serve the third-party notice for reasons not attributable to the seller, he is released from his warranty obligation to the extent that he can prove that the outcome would have been more favourable had the third-party notice been served promptly. 70 Amended by Annex 1 No II 5 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221). |
Art. 194
b. Surrender of object without court decision 1 The seller remains subject to the warranty obligation even if the buyer has in good faith acknowledged the right of a third party without waiting for a court decision or if he has agreed to submit to arbitration, provided that the seller was warned of the arbitration proceedings in good time but declined an invitation to engage therein. 2 The same applies if the buyer proves that he was compelled to surrender the object. |
Art. 195
3. Rights of the buyer a. Full dispossession 1 In the case of full dispossession, the contract of sale is deemed terminated and the buyer has the right to claim:
2 The seller is also obliged to make good any further loss suffered by the buyer unless the seller can prove that he is not at fault. |
Art. 196
b. Partial dispossession 1 Where the buyer is dispossessed of only part of the purchased object or it is encumbered with a charge in rem for which the seller is guarantor, the buyer may not seek termination of the contract of sale but may only claim damages for being thus dispossessed. 2 However, where in the circumstances there is cause to presume that he would not have entered into the contract if he had foreseen such a partial dispossession, he has the right to request its termination. 3 In this case, he must return to the seller that part of the item of which he has not been dispossessed together with the benefits he obtained from it in the interim. |
Art. 196a72
c. Objects of cultural heritage In the case of objects of cultural heritage within the meaning of Article 2 paragraph 1 of the Cultural Property Transfer Act of 20 June 200373, actions for breach of warranty of title prescribe one year after the buyer discovered the defect of title but in any event 30 years after the contract was concluded. 72 Inserted by Art. 32 No 2 of the Cultural Property Transfer Act of 20 June 2003, in force since 1 June 2005 (AS 2005 1869; BBl 2002 535). |
Art. 197
III. Warranty of quality and fitness 1. Object of the warranty a. In general 1The seller is liable to the buyer for any breach of warranty of quality and for any defects that would materially or legally negate or substantially reduce the value of the object or its fitness for the designated purpose. 2 He is liable even if he was not aware of the defects. |
Art. 201
4. Notice of defects a. In general 1 The buyer must inspect the condition of the purchased object as soon as feasible in the normal course of business and, if he discovers defects for which the seller is liable under warranty, must notify him without delay. 2 Should he fail to do so, the purchased object is deemed accepted except in the case of defects that would not be revealed by the customary inspection. 3 Where such defects come to light subsequently, the seller must be notified immediately, failing which the object will be deemed accepted even in respect of such defects. |
Art. 202
b. In livestock trading 1 Where in a sale of livestock a written assurance includes no time limit and does not warrant that an animal is pregnant, the seller is not liable to the buyer unless a defect is discovered and notified within nine days of delivery or of the notice of default in taking delivery and an application is made to the competent authority within the same time limit to have the animal examined by experts. 2 The court evaluates the experts’ report at its discretion. 3 In other respects the procedure is governed by regulations enacted by the Federal Council. |
Art. 204
6. Remote sale and purchase 1 A buyer who complains that an object sent from another place is defective is obliged to place it in temporary storage, provided the seller has no representative in the place in which it was received, and cannot simply return it to the seller. 2 The buyer is obliged to have the condition of the object duly and promptly witnessed, failing which he will bear the burden of proving that the alleged defects already existed when he took receipt of the object. 3 Where there is a risk that the object will rapidly deteriorate, the buyer has the right and, should the interests of the seller so require, the obligation to arrange its sale with the assistance of the competent authority of the place where the object is located, but must notify the seller of such sale as soon as possible to avoid rendering himself liable in damages. |
Art. 205
7. Types of action a. Rescission or reduction 1 In claims for breach of warranty of quality and fitness, the buyer may sue either to rescind the contract of sale for breach of warranty or to have the sale price reduced by way of compensation for the decrease in the object’s value. 2 Even where the buyer has brought action for rescission the court is free to order a reduction in the price of the object if it does not consider rescission justified by the circumstances. 3 If the decrease in the object’s value is equal to the sale price, the buyer may only sue for rescission. |
Art. 206
b. Substitute performance 1 Where the contract of sale is for delivery of a specified quantity of fungibles, the buyer may choose to bring action either for rescission or for a reduction in the sale price or to request other acceptable goods of the same kind. 2 Where the purchased objects have not been sent from another place, the seller may discharge his obligation to the buyer by immediately delivering acceptable items of the same kind and making good any damage the buyer has suffered. |
Art. 207
c. Rescission when the object is destroyed 1 Action for rescission of the contract of sale may be brought if the object has been destroyed as a result of its defects or by accident. 2 In such cases the buyer must return only that which remains of the object. 3 If the object is destroyed through the fault of the buyer or has been sold on or transformed by him, his only claim is for compensation for the decrease in value. |
Art. 208
8. Rescission of the contract of sale a. In general 1 In the event of rescission of the contract of sale the buyer must return the object to the seller together with any benefits derived from it in the interim. 2 The seller must reimburse to the buyer the sale price paid together with interest and, in accordance with the provisions governing full dispossession, compensation for litigation costs, expenses and the damage incurred by the buyer as a result of the delivery of defective goods. 3 The seller is obliged to compensate the buyer for any further damage unless he can prove that no fault is attributable to him. |
Art. 209
b. For sales of batches or sets of objects 1 Where the sale involves a batch or set of objects of which only some are defective, action for rescission may be brought only in respect of the defective items. 2 However, where the defective items cannot be separated from the unflawed items without substantial prejudice to the buyer or the seller, rescission of the contract of sale must extend to the entire batch or set. 3 Rescission in respect of the main sale object necessarily involves rescission in respect of all accessory objects even if they are priced separately, whereas rescission in respect of accessory objects does not extend to the main object. |
Art. 21074
9. Prescription 1 An action for breach of warranty of quality and fitness prescribes two years after delivery of the object to the buyer, even if he does not discover the defects until later, unless the seller has assumed liability under warranty for a longer period. 2 The period amounts to five years where defects in an object that has been incorporated in an immovable work in a manner consistent with its nature and purpose have caused the work to be defective. 3 In the case of cultural property within the meaning of Article 2 paragraph 1 of the Cultural Property Transfer Act of 20 June 200375, actions for breach of warranty of quality and fitness prescribe one year after the buyer discovered the defect but in any event 30 years after the contract was concluded. 4 An agreement to reduce the prescriptive period is null and void if:
5 The defence of defective goods remains available to the buyer provided he has notified the seller within the prescriptive period. 6 The seller may not invoke the prescriptive period if it is proved that he wilfully misled the buyer. The foregoing does not apply to the 30-year period under paragraph 3. 74 Amended by No I of the FA of 16 March 2012 (Prescription of Guarantee Claims. Extension and Coordination), in force since 1 Jan. 2013 (AS 2012 5415; BBl 2011 28893903). |
Art. 211
C. Obligations of the buyer I. Payment of the sale price and acceptance of the object 1 The buyer has an obligation to pay the price in accordance with the terms of the contract and to accept the sale object provided it is offered to him by the seller as contractually agreed. 2 Unless otherwise provided by agreement or custom, such acceptance must take place immediately. |
Art. 212
II. Fixing the price 1 Where the buyer places a firm order without indicating the sale price, the price is presumed to be the average current market price at the place of performance. 2 Where the price is based on the weight of the goods, the weight of the packaging (tare) is deducted. 3 The foregoing does not apply to special commercial customs whereby the gross weight of certain resale merchandise is reduced by a set amount or percentage or the price is based on the gross weight including packaging. |
Art. 213
III. Time when price falls due, interest 1 The price falls due as soon as the property passes into the buyer’s possession, unless some other juncture is agreed. 2 Regardless of the provision governing default on expiry of a specified time limit, interest accrues on the sale price even if no reminder is issued where such practice is customary or the buyer may derive fruits or other benefits from the purchased object. |
Art. 214
IV. Buyer in default 1. Seller’s right of withdrawal 1 Where the property is to be delivered against advance payment of the price in full or in instalments and the buyer is in default on such payment, the seller is entitled to withdraw from the contract without further formality. 2 However, if he intends to exercise this right he must notify the buyer immediately. 3 Where the purchased object has passed into the buyer’s possession prior to payment, the seller may withdraw from the contract on the grounds that the buyer is in default and demand the return of the object only if he has expressly reserved the right to do so. |
Art. 215
2. Liability for and computation of damages 1 Where the buyer in a commercial transaction fails to discharge his payment obligation, the seller is entitled to compensation for the difference between the sale price and the price at which he has subsequently sold the object in good faith. 2 In the case of goods with a market or stock exchange price, the seller is entitled to claim as damages the difference between the contractual sale price and the market price at the time of performance without needing to sell the object on. |
Section Three: The Sale of Immovable Property |
Art. 216
A. Formal requirements 1 A contract for the sale of immovable property is valid only if done as a public deed. 2 A preliminary contract and an agreement conferring a right of pre-emption, purchase or repurchase in relation to immovable property is valid only if done as a public deed.76 3 An agreement conferring a right of pre-emption without fixing a price is valid if done in writing.77 76Amended by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). 77Amended by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). |
Art. 216a78
Abis. Duration and priority notice Rights of pre-emption or repurchase may be agreed for a maximum duration of 25 years and rights of purchase for a maximum of 10 years, and they may be entered under priority notice in the land register. 78Inserted by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). |
Art. 216b79
Ater. Inheritance and assignment 1 Unless otherwise agreed, contractual rights of pre-emption, purchase and repurchase may be inherited but not assigned. 2 Where assignment is permitted by contractual agreement, it is subject to the same formal requirements as apply to the establishment of the right. 79Inserted by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). |
Art. 216c80
Aquater. Rights of pre-emption I. Pre-emption events 1 A right of pre-emption may be exercised on the sale of the immovable property or any other legal transaction economically equivalent to a sale (pre-emption event). 2 In particular, the following are not pre-emption events: allocation to an heir in the division of an estate, forced sale, or acquisition in performance of public duties. 80Inserted by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). |
Art. 216d81
II. Effect of pre-emption, conditions 1 The seller must inform persons with a right of pre-emption of the conclusion and content of any contract of sale entered into. 2 Where the contract of sale is terminated after the right of pre-emption has been exercised or if necessary permission is refused for reasons pertaining to the person of the buyer, such termination or refusal has no effect on the person to whom the right of pre-emption accrues. 3 Unless the pre-emption agreement provides otherwise, the person with the right of pre-emption may purchase the property on the conditions agreed by the seller with the third party. 81Inserted by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). |
Art. 216e82
III. Exercise, forfeiture A person wishing to exercise his right of pre-emption must give notice of his intention within three months to the seller or, if it is entered in the land register, to the owner. This time limit commences on the day on which the person with the right of pre-emption became aware of the conclusion and content of the contract of sale. 82Inserted by No II of the FA of 4 Oct. 1991, in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 889). |
Art. 21883
C. Agricultural properties The Federal Act of 4 October 199184 on Rural Land Rights applies to the sale of agricultural properties. 83Amended by Art. 92 No 2 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953). |
Art. 219
D. Warranty 1 Unless otherwise agreed, the seller of a property must compensate the buyer if it is not of the size indicated in the contract of sale. 2 Where the property is not of the size entered in the land register based on an official survey, the seller must compensate the buyer only where he gave express warranty to that effect. 3 The warranty obligation in respect of defects in a building prescribes five years after ownership is acquired. |
Section Four: Special Types of Sale |
Art. 222
A. Sale by sample 1 In a sale by sample, the person to whom the sample was entrusted is not obliged to prove that the sample he presented is identical with the one received; his personal assurance to the court is sufficient, even where the sample presented has altered in form since delivery, provided that such alteration was a necessary consequence of the examination made of the sample. 2 In any event the other party is entitled to prove that the sample is not the same one. 3 If the sample has been spoiled or been destroyed while in the possession of the buyer, even if he was not at fault, the onus is not on the seller to prove that the object conforms with the sample, but on the buyer to prove the contrary. |
Art. 224
II. Inspection on the seller’s premises 1 Where the object is to be inspected on the premises of the seller, he is released from his obligation if the buyer fails to accept the object within the agreed or customary time limit. 2 In the absence of any such time limit the seller may, after an appropriate interval, call on the buyer to declare whether he accepts the object, and the seller is released from his obligation if the buyer fails to make such declaration immediately on request. |
Art. 225
III. Inspection on the buyer’s premises 1 Where the object has been delivered to the buyer prior to inspection, the sale is deemed to have been approved if the buyer neither declares that he rejects the object nor returns it within the agreed or customary time limit or, in the absence of any such time limit, immediately on demand by the seller. 2 The sale is similarly treated as completed, if the buyer pays the whole or part of the price without reservation or if he deals with the property otherwise than was necessary for its inspection. |
Art. 22685
85Repealed by No I of the FA of 23 March 1962, with effect from 1 Jan. 1963 (AS 1962 1047; BBl 1960 I 523). |
Art. 226a–226d86
C. ... 86Inserted by No I of the FA of 23 March 1962 (AS 1962 1047; BBl 1960 I 523). Repealed by Annex 2 No II 1 to the FA of 23 March 2001 on Consumer Credit, with effect from 1 Jan. 2003 (AS 2002 3846; BBl 1999 III 3155). |
Art. 226e87
87 Inserted by No I of the FA of 23 March 1962 (AS 1962 1047; BBl 1960 I 523). Repealed by No I of the FA of 14 Dec. 1990, with effect from 1 July 1991 (AS 1991 974; BBl 1989 III 1233, 1990 I 120). |
Art. 226f–226k88
88Inserted by No I of the FA of 23 March 1962 (AS 1962 1047; BBl 1960 I 523). Repealed by Annex 2 No II 1 to the FA of 23 March 2001 on Consumer Credit, with effect from 1 Jan. 2003 (AS 2002 3846; BBl 1999 III 3155). |
Art. 226l89
89 Inserted by No I of the FA of 23 March 1962 (AS 1962 1047; BBl 1960 I 523). Repealed by Annex No 5 to the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 III 2829). |
Art. 226m90
90Inserted by No I of the FA of 23 March 1962 (AS 1962 1047; BBl 1960 I 523). Repealed by Annex 2 No II 1 to the FA of 23 March 2001 on Consumer Credit, with effect from 1 Jan. 2003 (AS 2002 3846; BBl 1999 III 3155). |
Art. 22791
91Repealed by No I of the FA of 23 March 1962, with effect from 1 Jan. 1963 (AS 1962 1047; BBl 1960 I 523). |
Art. 227a–227i92
92Inserted by No I of the FA of 23 March 1962 (AS 1962 1047; BBl 1960 I 523). Repealed by No I of the FA of 13 Dec. 2013 (Repeal of the Provisions on Advance Payment Agreements), with effect from 1 July 2014 (AS 2014 869; BBl 2013 46315793). |
Art. 22893
93Repealed by No I of the FA of 13 Dec. 2013 (Repeal of the Provisions on Advance Payment Agreements), with effect from 1 July 2014 (AS 2014 869; BBl 2013 46315793). |
Art. 229
D. Auctions I. Conclusion of the purchase 1 At a compulsory auction, a contract of sale is concluded when the official auctioneer knocks the object down to the highest bidder. 2 In the case of a voluntary auction that has been publicly announced and is open to all bidders, a contract of sale is concluded when the seller accepts the bid of the highest bidder. 3 Unless the seller has expressed some other intention, the auctioneer is deemed to have the authority to knock the object down to the highest bidder. |
Art. 230
II. Avoidance 1 Any interested party may within ten days bring a claim for avoidance in respect of an auction whose outcome has been influenced by unlawful or immoral means. 2 In the case of a compulsory auction, the avoidance claim must be brought before the supervisory authority, and in all other cases before the court. |
Art. 231
III. Binding nature of bids at auction 1. In general 1 A bidder is bound by his offer according to the auction terms and conditions. 2 Unless these provide otherwise, he is released from his obligation if a higher bid is made or if his own bid is not accepted immediately after the usual call has been made. |
Art. 232
2. Immovable property 1 In the case immovable property, the highest bid must be accepted or refused at the auction itself. 2 Any condition whereby the bidder is bound to maintain his bid after the auction is void, other than in the case of compulsory auctions or sales of land or buildings that require official approval. |
Art. 234
V. Warranty 1 Sale at compulsory auction is without warranty, apart from special assurances given or where the bidders are intentionally deceived. 2 The successful bidder acquires the object in the condition and with the attendant rights and encumbrances indicated in the public registers or the lot description and/or those that exist by operation of law. 3 In sales at voluntary public auction, the seller has the same liability as in any other sale, but in the lot description he may disclaim any warranty obligation with the exception of liability for intentional deceit. |
Art. 235
VI. Transfer of ownership 1 The successful bidder for a chattel acquires title to it as soon as it is knocked down to him, whereas ownership of immovable property is not transferred until the entry is made in the land register. 2 The official auctioneers immediately notify the land registry of the sale at auction by reference to the formal auction record. 3 The provisions governing acquisition of ownership at compulsory auction are reserved. |
Title Seven: The Gift |
Art. 239
A. Definition 1 A gift is any inter vivos disposition in which a person uses his assets to enrich another without receiving an equivalent consideration. 2 Waiving a right before having acquired it or renouncing an inheritance does not constitute a gift. 3 The performance of a moral duty is not considered to be a gift. |
Art. 240
B. Personal capacity I. Of the donor 1 A person with capacity to act may make gifts of his assets within the bounds imposed by matrimonial property law and inheritance law. 2 The assets of a person who lacks capacity to act may be used only to make customary occasional gifts. The liability of the legal representative is reserved.94 3 ...95 94 Amended by Annex No 10 of the FA of 19 Dec. 2008 (Adult Protection, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 20067001). 95 Repealed by Annex No 10 of the FA of 19 Dec. 2008 (Adult Protection, Law of Persons and Law of Children), with effect from 1 Jan. 2013 (AS 2011 725; BBl 20067001). |
Art. 241
II. Of the recipient 1 A person who lacks capacity to act may accept and legally acquire title to a gift provided he has capacity to consent. 2 However, the gift is not acquired or is annulled where his legal representative forbids him to accept it or instructs him to return it. |
Art. 242
C. Establishing the gift I. From hand to hand 1 A gift from hand to hand is made when the donor presents the object to the recipient. 2 Gifts of title or rights in rem to immovable property are not effective until an entry is made in the land register. 3 The entry presupposes a valid promise to give. |
Art. 243
II. Promise of a gift 1 The promise of a gift is valid only if done in writing. 2 A promise to give title or rights in rem to immovable property is valid only if done as a public deed. 3 On fulfilment of the promise to give, the relationship is treated as a gift from hand to hand. |
Art. 246
II. Fulfilment of provisos 1 The donor may bring action for fulfilment of a proviso that has been accepted by the recipient. 2 Where fulfilment of the proviso is in the public interest, the competent authority may compel fulfilment after the death of the donor. 3 The recipient may refuse to fulfil the proviso if the value of the gift does not cover the expenses occasioned by the proviso and he is not reimbursed for the shortfall. |
Art. 247
III. Reversion clause 1 The donor may provide that the object given shall revert to him in the event that the recipient dies before he does. 2 A reversionary right attached to a gift of title or rights in rem to immovable property may be entered under priority notice in the land register. |
Art. 249
F. Annulment of gifts I. Claim for return of gift Where a gift has been made from hand to hand or a promise to give has been fulfilled, the donor may revoke the gift and claim return of the object given, provided the recipient is still enriched thereby:
96 Amended by Annex No 2 to the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1). |
Art. 250
II. Revocation and invalidation of a promise to give 1 The donor who has made a promise to give may revoke the promise and refuse to fulfil it:
2 All promises to give are annulled when a certificate of loss is issued against the donor or he is declared bankrupt. |
Art. 251
III. Prescription and heirs’ right of action 1 Revocation may take place at any time in the year commencing on the day on which the grounds for revocation came to the donor’s attention. 2 If the donor dies before the end of this one-year period, his right of action passes to his heirs for the remainder of the period. 3 The donor’s heirs may revoke the gift if the recipient wilfully and unlawfully caused the donor’s death or prevented him from exercising his right of revocation. |
Title Eight: The Lease97
97Amended by No I of the FA of 15 Dec. 1989, in force since 1 July 1990 (AS 1990 802; BBl 1985 I 1369). See also the financial provisions of Titles VIII and VIIIbis Art. 5, at the end of this Code. |