With big laws like OR and ZGB this can take up to 30 seconds

Section One: Joint and Several Obligations

Art. 143  

A. Joint and sev­er­al debt­ors

I. Re­quire­ment

 

1 Debt­ors be­come jointly and sev­er­ally li­able for a debt by stat­ing that each of them wishes to be in­di­vidu­ally li­able for per­form­ance of the en­tire ob­lig­a­tion.

2 Without such a state­ment of in­tent, debt­ors are joint and sev­er­ally li­able only in the cases spe­cified by law.

Art. 144  

II. Re­la­tion­ship between cred­it­or and debt­or

1. Ef­fect

a. Li­ab­il­ity of the debt­ors

 

1 A cred­it­or may at his dis­cre­tion re­quest par­tial per­form­ance of the ob­lig­a­tion from each joint and sev­er­al debt­or or else full per­form­ance from any one of them.

2 All the debt­ors re­main un­der the ob­lig­a­tion un­til the en­tire claim has been re­deemed.

Art. 145  

b. Ob­jec­tions by the debt­ors

 

1 A joint and sev­er­al debt­or may raise against the cred­it­or only those ob­jec­tions that are based either on his per­son­al re­la­tion­ship with the cred­it­or or on the nature of or col­lect­ive reas­on for the joint and sev­er­al ob­lig­a­tion.

2 Each joint and sev­er­al debt­or is li­able to the oth­ers if he fails to raise the ob­jec­tions which all of them are en­titled to raise.

Art. 146  

c. Ac­tion taken by in­di­vidu­al debt­ors

 

Un­less oth­er­wise provided, a joint and sev­er­al debt­or must not take any ac­tion which might im­pair the po­s­i­tion of his fel­lows.

Art. 147  

2. Ex­tinc­tion of the joint and sev­er­al ob­lig­a­tion

 

1 Where one joint and sev­er­al debt­or sat­is­fies the cred­it­or by pay­ment or set-off, the oth­ers are dis­charged to that ex­tent.

2 Where one joint and sev­er­al debt­or is re­leased from li­ab­il­ity without sat­is­fac­tion of the cred­it­or, such re­lease does not be­ne­fit the oth­ers save to the ex­tent jus­ti­fied by the cir­cum­stances or the nature of the ob­lig­a­tion.

Art. 148  

III. Re­la­tion­ship between joint and sev­er­al debt­ors

1. Par­ti­cip­a­tion

 

1 Un­less the leg­al re­la­tion­ship between the joint and sev­er­al debt­ors in­dic­ates oth­er­wise, each of them as­sumes an equal share of the pay­ment made to the cred­it­or.

2 A joint and sev­er­al debt­or who pays more than his fair share has re­course against the oth­ers for the ex­cess.

3 Amounts that can­not be re­covered from one joint and sev­er­al debt­or must be borne in equal shares by the oth­ers.

Art. 149  

2. Sub­rog­a­tion

 

1 A joint and sev­er­al debt­or with right of re­course against his fel­low debt­ors is sub­rog­ated to the rights of the cred­it­or to the ex­tent the lat­ter has been sat­is­fied.

2 The cred­it­or is li­able if he fa­vours the leg­al po­s­i­tion of one joint and sev­er­al debt­or to the det­ri­ment of the oth­ers.

Art. 150  

B. Joint and sev­er­al cred­it­ors

 

1 Mul­tiple cred­it­ors be­come joint and sev­er­al cred­it­ors where the debt­or states that he wishes to grant each of them the right to re­ceive full per­form­ance of the debt and in the cases pre­scribed by law.

2 Per­form­ance made to one joint and sev­er­al cred­it­or dis­charges the debt­or as against all of them.

3 The debt­or may choose which joint and sev­er­al cred­it­or he makes the pay­ment to, provided none of them has ini­ti­ated leg­al pro­ceed­ings against him.

Section Two: Conditional Obligations

Art. 151  

A. Con­di­tion pre­ced­ent

I. In gen­er­al

 

1 A con­tract is con­di­tion­al if its bind­ing nature is made de­pend­ent on the oc­cur­rence of an event that is not cer­tain to hap­pen.

2 The con­tract takes ef­fect as soon as this con­di­tion pre­ced­ent oc­curs, un­less the parties clearly in­ten­ded oth­er­wise.

Art. 152  

II. Be­fore the con­di­tion oc­curs

 

1 Un­til such time as the con­di­tion pre­ced­ent oc­curs, the con­di­tion­al ob­lig­or must re­frain from any act which might pre­vent the due per­form­ance of his ob­lig­a­tion.

2 A con­di­tion­al ob­li­gee whose rights are jeop­ard­ised is en­titled to ap­ply for the same pro­tect­ive meas­ures as if his claim were un­con­di­tion­al.

3 On ful­fil­ment of the con­di­tion pre­ced­ent, dis­pos­i­tions made be­fore it oc­curred are void to the ex­tent that they im­pair the ef­fect of the con­di­tion pre­ced­ent.

Art. 153  

III. Be­ne­fits en­joyed in the in­ter­im

 

1 A cred­it­or in­to whose pos­ses­sion a prom­ised ob­ject has been de­livered be­fore the con­di­tion pre­ced­ent oc­curred may, on ful­fil­ment of the con­di­tion pre­ced­ent, keep any be­ne­fits ob­tained from it in the in­ter­im.

2 If the con­di­tion pre­ced­ent fails to oc­cur, he is ob­liged to re­turn such be­ne­fits.

Art. 154  

B. Con­di­tion sub­sequent

 

1 A con­tract whose ter­min­a­tion is made de­pend­ent on the oc­cur­rence of an event that is not cer­tain to hap­pen lapses as soon as that con­di­tion is ful­filled.

2 As a rule, there is no ret­ro­act­ive ef­fect.

Art. 155  

C. Joint pro­vi­sions

I. Ful­fil­ment of the con­di­tion

 

If the con­di­tion con­sists of an act by one of the parties and that act need not be car­ried out in per­son, it may also be car­ried out by the party’s heirs.

Art. 156  

II. Pre­ven­tion in bad faith

 

A con­di­tion is deemed ful­filled where one of the parties has pre­ven­ted its ful­fil­ment by act­ing in bad faith.

Art. 157  

III. In­ad­miss­ible con­di­tions

 

Where a con­di­tion is at­tached with the in­ten­tion of en­cour­aging an un­law­ful or im­mor­al act or omis­sion, the con­di­tion­al claim is void.

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. 161  

2. Re­la­tion between pen­alty and dam­age

 

1 The pen­alty is pay­able even if the cred­it­or has not suffered any dam­age.

2 Where the dam­age suffered ex­ceeds the pen­alty amount, the cred­it­or may claim fur­ther com­pens­a­tion only if he can prove that the debt­or was at fault.

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. 165  

b. Form of the con­tract

 

1 An as­sign­ment is val­id only if done in writ­ing.

2 No par­tic­u­lar form is re­quired for an un­der­tak­ing to enter in­to an as­sign­ment agree­ment.

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. 174  

III. Spe­cial pro­vi­sions

 

Where the law en­vis­ages spe­cial pro­vi­sions gov­ern­ing the as­sign­ment of claims, these are un­af­fected.

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).

67SR 221.301

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).

Art. 183  

VII. In re­la­tion to di­vi­sion of es­tate and land pur­chase

 

The spe­cial pro­vi­sions gov­ern­ing as­sump­tion of debt when di­vid­ing es­tates or dis­pos­ing of pledged im­mov­able prop­erty are un­af­fected.

Division Two: Types of Contractual Relationship

Title Six: Sale and Exchange

Section One: General Provisions

Art. 184  

A. Rights and ob­lig­a­tions of the parties in gen­er­al

 

1 A con­tract of sale is a con­tract whereby the seller un­der­takes to de­liv­er the item sold and trans­fer own­er­ship of it to the buy­er in re­turn for the sale price, which the buy­er un­der­takes to pay to the seller.

2 Un­less oth­er­wise provided by agree­ment or cus­tom, the seller and the buy­er are ob­liged to dis­charge their ob­lig­a­tions sim­ul­tan­eously quid pro quo.

3 The price is deemed suf­fi­ciently de­term­ined where it can be de­term­ined from the cir­cum­stances.

Art. 185  

B. Be­ne­fits and risks

 

1 The be­ne­fit and risk of the ob­ject pass to the buy­er on con­clu­sion of the con­tract, ex­cept where oth­er­wise agreed or dic­tated by spe­cial cir­cum­stance.

2 Where the ob­ject sold is defined only in gen­er­ic terms, the seller must se­lect the par­tic­u­lar item to be de­livered and, if it is to be shipped, must hand it over for dis­patch.

3 In a con­tract sub­ject to a con­di­tion pre­ced­ent, be­ne­fit and risk of the ob­ject do not pass to the buy­er un­til the con­di­tion has been ful­filled.

Art. 186  

C. Re­ser­va­tion of can­ton­al law

 

Can­ton­al law may lim­it or ex­clude the right to bring claims in con­nec­tion with re­tail sales of al­co­hol­ic bever­ages, in­clud­ing hotel bills.

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. 188  

B. Seller’s ob­lig­a­tions

I. Trans­fer

1. Trans­fer costs

 

Un­less oth­er­wise provided by agree­ment or cus­tom, the seller bears the costs of trans­fer and in par­tic­u­lar those of meas­ur­ing and weigh­ing, while the buy­er bears those of doc­u­ment­a­tion and re­ceipt.

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).

71 SR 272

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:

1.
resti­tu­tion of the price paid, with in­terest, less the value of any fruits the buy­er has ob­tained or neg­lected to ob­tain from the ob­ject and oth­er be­ne­fits de­rived there­from;
2.
re­im­burse­ment of his ex­pendit­ures on the ob­ject, to the ex­tent this can­not be ob­tained from the third party with the su­per­i­or right;
3.
re­im­burse­ment of all ju­di­cial and ex­tra-ju­di­cial costs arising from the pro­ceed­ings, apart from those he would have avoided by serving third-party no­tice on the seller;
4.
com­pens­a­tion for all oth­er dam­age dir­ectly caused by the dis­pos­ses­sion.

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).

73 SR 444.1

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. 198  

b. In live­stock trad­ing

 

There is no war­ranty ob­lig­a­tion in sales of live­stock (horses, don­keys, mules, cattle, sheep, goats or pigs) un­less the seller has giv­en ex­press war­ranty in writ­ing to the buy­er or has in­ten­tion­ally misled the buy­er.

Art. 199  

2. Ex­clu­sion of war­ranty

 

Any agree­ment to ex­clude or lim­it the war­ranty ob­lig­a­tion is void if the seller has fraud­u­lently con­cealed the fail­ure to com­ply with war­ranty from the buy­er.

Art. 200  

3. De­fects known to the buy­er

 

1 The seller is not li­able for de­fects known to the buy­er at the time of pur­chase.

2 He is not li­able for de­fects that any nor­mally at­tent­ive buy­er should have dis­covered un­less he as­sured the buy­er that they do not ex­ist.

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. 203  

5. In­ten­tion­al de­ceit

 

Where the seller has wil­fully misled the buy­er, li­ab­il­ity for breach of war­ranty is not lim­ited by any fail­ure on the buy­er’s part to give prompt no­tice of de­fects.

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:

a.
the pre­script­ive peri­od is re­duced to less than two years, or less than one year in the case of second-hand goods;
b.
the ob­ject is in­ten­ded to be used by the buy­er or his or her fam­ily; and
c.
the seller is act­ing in the course of his or her pro­fes­sion­al or com­mer­cial activ­it­ies.

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).

75 SR 444.1

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. 217  

B. Con­di­tion­al pur­chase and re­ser­va­tion of own­er­ship

 

1 Con­di­tion­al pur­chases of im­mov­able prop­erty are not entered in the land re­gister un­til the con­di­tion has been ful­filled.

2 A re­ser­va­tion of own­er­ship may not be entered in the land re­gister.

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).

84SR 211.412.11

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.

Art. 220  

E. Be­ne­fits and risks

 

Where the agree­ment stip­u­lates a date on which the buy­er is to take pos­ses­sion of the prop­erty, the pre­sump­tion is that the as­so­ci­ated be­ne­fits and risks do not pass to the buy­er un­til that date.

Art. 221  

F. Ref­er­ence to chat­tel sale

 

In oth­er re­spects, the pro­vi­sions gov­ern­ing chat­tel sale ap­ply mu­tatis mutandis to the sale and pur­chase of land.

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. 223  

B. Sale on ap­prov­al or in­spec­tion

I. Ef­fect

 

1 In a sale on ap­prov­al or in­spec­tion, the buy­er is free to ac­cept or re­fuse the ob­ject.

2 Un­til it is ac­cep­ted, the seller re­mains its own­er even if it has passed in­to the buy­er’s pos­ses­sion.

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. 226a226d86  

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. 233  

IV. Cash pay­ment

 

1 The suc­cess­ful bid­der must pay in cash un­less the auc­tion terms and con­di­tions provide oth­er­wise.

2 The seller may im­me­di­ately with­draw from the trans­ac­tion if pay­ment is not tendered in cash or in ac­cord­ance with the auc­tion terms and con­di­tions.

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.

Art. 236  

VII. Can­ton­al pro­vi­sions

 

The can­tons may en­act oth­er pro­vi­sions gov­ern­ing sale at pub­lic auc­tion with­in the bounds of fed­er­al law.

Section Five: The Contract of Exchange

Art. 237  

A. Ref­er­ence to pro­vi­sions gov­ern­ing pur­chase

 

The rules gov­ern­ing con­tracts of sale also ap­ply to con­tracts of ex­change in the sense that each party to the ex­change is treated as seller in re­spect of the ob­ject prom­ised by him and as buy­er in re­spect of the ob­ject prom­ised to him.

Art. 238  

B. War­ranty

 

A party to the ex­change who is dis­pos­sessed of the ob­ject re­ceived or has re­turned it as de­fect­ive may either claim for dam­ages or for the re­turn of the ob­ject that he de­livered.

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. 244  

III. Ef­fect of ac­cept­ance

 

A per­son who be­stows an ob­ject on an­oth­er per­son by way of a gift may re­verse the be­stow­al at any time be­fore the re­cip­i­ent has ac­cep­ted it, even where he has ef­fect­ively sep­ar­ated it from his as­sets.

Art. 245  

D. Con­di­tions and pro­vis­os

I. In gen­er­al

 

1 Con­di­tions or pro­vis­os may be at­tached to a gift.

2 A gift whose oc­cur­rence is made con­tin­gent on the donor’s death is sub­ject to the pro­vi­sions gov­ern­ing test­a­ment­ary dis­pos­i­tions.

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. 248  

E. Li­ab­il­ity of the donor

 

1 The donor is li­able for dam­age caused by the gift to the re­cip­i­ent only in the event of wil­ful in­jury or gross neg­li­gence.

2 He need give only such war­ranty as he has prom­ised in re­spect of the ob­ject giv­en or the claim as­signed.

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:

1.96
if the re­cip­i­ent has com­mit­ted a ser­i­ous crim­in­al of­fence against the donor or a per­son close to him;
2.
if the re­cip­i­ent has grossly neg­lected his du­ties un­der fam­ily law to­wards the donor or any of the lat­ter’s de­pend­ants;
3.
if the re­cip­i­ent has failed without good cause to ful­fil the pro­vis­os at­tached to the gift.

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:

1.
on the same grounds as jus­ti­fy a claim for re­turn of the ob­ject giv­en in the case of a gift from hand to hand;
2.
where since the prom­ise was made the donor’s fin­an­cial situ­ation has altered to such an ex­tent that mak­ing the gift would cause ser­i­ous hard­ship;
3.
where since the prom­ise was made the donor has ac­quired du­ties un­der fam­ily law that pre­vi­ously did not ex­ist or were sig­ni­fic­antly less oner­ous.

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.

Art. 252  

IV. Death of the donor

 

Un­less oth­er­wise provided, where the donor has un­der­taken to make peri­od­ic pay­ments or per­form­ance, his ob­lig­a­tion is ex­tin­guished on his death.

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.

Section One: General Provisions

Art. 253  

A. Defin­i­tion and scope of ap­plic­a­tion

I. Defin­i­tion

 

Leases are con­tracts in which a land­lord or lessor grants a ten­ant or less­ee the use of an ob­ject in ex­change for rent.

Art. 253a  

II. Scope of ap­plic­a­tion

1. Res­id­en­tial and com­mer­cial premises

 

1 The pro­vi­sions gov­ern­ing the leas­ing of res­id­en­tial and com­mer­cial premises are also ap­plic­able to ob­jects on such premises of which the ten­ant has use.

2 They are not ap­plic­able to hol­i­day homes hired for three months or less.

3 The Fed­er­al Coun­cil is­sues the pro­vi­sions for im­ple­ment­a­tion.

Art. 253b  

2. Pro­vi­sions on pro­tec­tion against un­fair rents

 

1 The pro­vi­sions gov­ern­ing pro­tec­tion against un­fair rents (Art. 269 et seq.) ap­ply mu­tatis mutandis to non-ag­ri­cul­tur­al leases and to oth­er con­tracts whose es­sen­tial pur­pose is to reg­u­late the trans­fer of the use of res­id­en­tial or com­mer­cial premises against valu­able con­sid­er­a­tion.

2 They do not ap­ply to the lease of lux­ury apart­ments and single-oc­cu­pancy res­id­en­tial units with six or more bed­rooms and re­cep­tion rooms (not in­clud­ing the kit­chen).

3 The pro­vi­sions gov­ern­ing chal­lenges to un­fair rents do not ap­ply to res­id­en­tial premises made avail­able with pub­lic sec­tor sup­port for which rent levels are set by a pub­lic au­thor­ity.

Art. 254  

B. Tie-in trans­ac­tions

 

A tie-in trans­ac­tion linked to a lease of res­id­en­tial or com­mer­cial premises is void where the con­clu­sion or con­tinu­ation of the lease is made con­di­tion­al on such trans­ac­tion and, un­der its terms, the ten­ant as­sumes an ob­lig­a­tion to­wards the land­lord or a third party which is not dir­ectly con­nec­ted with the use of the leased premises.

Art. 255  

C. Dur­a­tion

 

1 Leases may be con­cluded for a lim­ited or in­def­in­ite dur­a­tion.

2 Where the in­ten­tion is that they should end without no­tice on ex­piry of the agreed dur­a­tion, they have a lim­ited dur­a­tion.

3 Oth­er leases are deemed to be of in­def­in­ite dur­a­tion.

Art. 256