Art. 351a

1 Before each work assignment is given to the homeworker, the employer must inform him of the applicable conditions and specifications to the extent these are not already covered by the general terms and conditions of employment; he must specify the materials to be procured by the homeworker and state in writing the amounts to be reimbursed for such materials and the salary.

2 If information regarding the salary and the amounts to be reimbursed for materials procured by the homeworker is not given in writing before the work is allocated, the customary terms and conditions of employment are applicable.


Division Two: Types of Contractual Relationship

Section Two: Special Individual Employment Contracts

II. Special obligations of the home worker

Art. 352

1 The homeworker must start the work he has accepted on time, finish it by the agreed deadline and deliver the results to the employer.

2 If the work is defective and the homeworker is at fault, he is obliged to rectify it at his own expense to the extent that the defects can be removed.


Art. 352a

1 The homeworker is obliged to treat the materials and tools supplied by the employer with all due care, to give account of how they are used and to return tools and unused materials to the employer.

2 Where in the course of his work the homeworker notes defects in the materials or tools supplied, he must inform the employer immediately and await further instructions before continuing work.

3 Where the materials or tools supplied have been damaged through the fault of the homeworker, he is liable to the employer at most for the replacement cost.


III. Special obligations of the employer

Art. 353

1 The employer must inspect the completed work on delivery and notify the homeworker of any defects within one week.

2 Where the employer fails to notify defects to the homeworker promptly, the work is deemed to have been accepted.


Art. 353a

1 Where the homeworker is engaged by the employer on a continuous basis, the salary for the work carried out is paid twice monthly or, with the homeworker’s consent, at the end of each month, and otherwise on delivery of the completed work.

2 Each salary payment must be accompanied by a written statement giving the reasons for any salary deductions that have been made.


Art. 353b

1 An employer who engages the home worker on a continuous basis is obliged pursuant to Articles 324 and 324_a_ to pay his salary in the event that the employer fails to accept his work or he is prevented from working by personal circumstances for which he is not at fault.

2 In other cases the employer is not obliged to pay the salary pursuant to Articles 324 and 324_a_.


Art. 354

1 Where trial work is assigned to the homeworker, unless otherwise agreed the employment relationship is deemed to have been entered into on a trial basis for a fixed period.

2 Unless otherwise agreed, where the homeworker is engaged by the employer on a continuous basis, the employment relationship is deemed to have been entered into for an indefinite period, and in all other cases it is deemed to have been entered into for a fixed period.


Art. 355

The general provisions governing individual employment contracts are applicable by way of supplement to apprenticeship contracts, commercial traveller’s contracts and homeworker’s contracts.


Section Three: The Collective Employment Contract and the Standard Employment Contract

I. Definition, content, form and duration

Art. 356

1 A collective employment contract is a contract whereby employers or employers’ associations and employees’ associations jointly lay down clauses governing the conclusion, nature and termination of employment relationships between the employers and individual employees.

2 The collective employment contract may also contain other clauses, provided they pertain to the relationship between employers and employees or are limited to the formulation of such clauses.

3 Further, the collective employment contract may define the mutual rights and obligations of the contracting parties and the monitoring and enforcement of the clauses specified in the previous paragraphs.

4 Where more than one employers’ association and/or employees’ association is bound by the collective employment contract either from the outset or as a result of subsequent accession with the consent of the original contracting parties, they have equal rights and obligations thereunder and any contrary agreement is void.


2. Freedom of association and freedom to practise a profession

Art. 356a

1 Any clause in a collective employment contract or individual agreement between the contracting parties intended to compel an employer or employee to join a contracting association is void.

2 Any clause in a collective employment contract or individual agreement between the contracting parties intended to exclude or restrict the practice of a particular profession or occupation by an employee or his acquisition of the necessary vocational training is void.

3 The clauses and agreements referred to in the previous paragraph are valid by way of exception if they are justified by overriding interests that warrant protection, in particular personal health and safety or the quality of work; however, denial of access to the profession is not an interest that warrants protection.


Art. 356b

1 Individual employers and individual employees in the service of employers bound by the collective employment contract may accede to it with the consent of the contracting parties, whereupon they become participating employers and employees.

2 The collective employment contract may stipulate the rules governing such accession. Unreasonable conditions attaching to accession, such as unreasonable monetary contributions, may be declared void or limited to an admissible level by the court; however, clauses and agreements intended to set contributions in favour of one individual contracting party are always void.

3 Any clause in a collective employment contract or individual agreement between the contracting parties intended to compel members of associations to accede to the collective employment contract is void if such associations are not entitled to become party to it or to conclude an analogous contract.


Art. 356c

1 The conclusion of a collective employment contract, its amendment and termination by mutual agreement, the accession of a new contracting party and notice to terminate the contract are valid only if done in writing, as are declarations of accession by individual employers or employees, the consent to such accession by the contracting parties pursuant to Article 356_b_ paragraph 1 and notice to withdraw from the contract.

2 Where the collective employment contract is open-ended and does not provide otherwise, after one year has elapsed any of the contracting parties may withdraw from it at any time by giving six months’ notice, which is effective for all other parties. The same applies _mutatis mutandis_ to parties subsequently acceding to the contract.


1. On participating employers and employees

Art. 357

1 Unless otherwise stipulated in the collective employment contract, its provisions relating to the formation, nature and termination of individual employment relationships are binding on the participating employers and employees for the duration of the contract and may not be derogated.

2 Any agreement between participating employers and employees that contradicts the compulsory provisions of the collective employment contract is void and replaced by those provisions; however, such an agreement may be valid if it is to the benefit of the employee.


Art. 357a

1 The contracting parties are obliged to ensure compliance with the collective employment contract; to this end associations must exert their influence on their members and, where required, have recourse to the means placed at their disposal by their articles of association and the law.

2 Each contracting party has a duty to maintain harmonious industrial relations and in particular to refrain from any hostile action on matters regulated by the collective employment contract; such duty applies without restriction only where expressly so agreed.


Art. 357b

1 A collective employment contract concluded between associations may stipulate that each contracting party has an actionable claim against the other parties in the event that they fail to discharge their duty to ensure that the participating employers and employees abide by the contract as regards the following matters:

a.

 the formation, nature and termination of employment relationships, in respect of which the claim is for a declaratory judgment only;

b.

 the payment of contributions to equalisation funds or other institutions in connection with the employment relationship, the representation of employees within businesses and the maintenance of harmonious industrial relations;

c.

 monitoring activities, the provision of security and contractual penalties in relation to the provisions set out in letters a and b.

2 Clauses within the meaning of the previous paragraph may be agreed where the contracting parties are expressly authorised so to do by their articles of association or resolution passed by their governing body.

3 Unless otherwise stipulated in the collective employment contract, the provisions governing simple partnerships apply mutatis mutandis to relations between the contracting parties.


Art. 358

The mandatory law of the Confederation and the cantons takes precedence over the collective employment contract; however, other provisions may be agreed to the benefit of employees provided they do not conflict with mandatory law.


Art. 359

1 The standard employment contract is a contract in which clauses governing the formation, nature and termination of certain types of employment relationship are laid down.

2 The cantons shall draw up standard employment contracts for agricultural workers and domestic staff to regulate in particular working hours, leisure time and employment conditions for female employees and minors.

3 Article 358 is applicable_mutatis mutandis_ to the standard employment contract.


Art. 359a

1 Where the scope of application of a standard employment contract extends over more than one canton, the Federal Council is responsible for issuing it, but otherwise the canton is responsible.

2 Before being issued, the standard employment contract shall be published in an appropriate manner and a time limit set within which interested parties may submit their comments in writing; furthermore, the relevant professional associations and public bodies shall be consulted.

3 The standard employment contract comes into force once it has been issued in accordance with the provisions governing official publications.

4 The same procedure applies to the rescission or amendment of a standard employment contract.


Art. 360

1 Unless otherwise agreed, the standard employment contract applies directly to the employment relationships that it governs.

2 The standard employment contract may stipulate that agreements derogating from certain of its provisions must be done in writing.


Art. 360a215

1 Where the wages that are customary for a geographical area, occupation or industry are repeatedly and unfairly undercut within a particular occupation or economic sector and there is no collective employment contract laying down a minimum wage that may be declared universally binding, on application by the tripartite commission as defined in Article 360_b,_ the competent authority may issue a fixed-term standard employment contract providing for a minimum wage varied by region and, where applicable, by locality in order to combat or prevent abusive practices.

2 The minimum wage must not conflict with the public interest or prejudice the legitimate interests of other economic sectors or sections of the population. It must have due regard to the minority interests of the economic sectors or occupations concerned that stem from regional and business diversity.

3 In the case of repeated infringements of the provisions on the minimum wage in a standard employment contract in accordance with paragraph 1 or if there is evidence that no longer using the standard employment contract may lead to further abusive practices in terms of paragraph 1, at the request of the tripartite commission, the competent authority may extend the standard employment contract for a limited period.[216](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12078)

[215](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12050) Inserted by Annex No 2 to the FA of 8 Oct. 1999 on Workers posted to Switzerland, in force since 1 June 2004 ([AS **2003** 1370](eli/oc/2003/231/en);[BBl **1999** 6128](eli/fga/1999/1%5F6128%5F5440%5F5092/en)).

[216](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12078) Inserted by No II of the FA of 30 Sept. 2016, in force since 1 April 2017 ([AS **2017** 2077](eli/oc/2017/184/en);[BBl **2015** 5845](eli/fga/2015/1362/en)).


Art. 360b217

1 The Confederation and each canton shall establish a tripartite commission consisting of an equal number of employers’ and employees’ representatives in addition to representatives of the state.

2 Employers’ and employees’ associations have the right to put forward candidates for selection as their representatives within the meaning of paragraph 1.

3 The commissions monitor the labour market. If they observe abusive practices within the meaning of Article 360_a_ paragraph 1, they normally seek to reach agreement directly with the employers concerned. Where this cannot be achieved within two months, they petition the competent authority to issue a standard employment contract fixing a minimum wage for the affected sectors or occupations.

4 If labour market conditions in the affected sectors change, the tripartite commission petitions the competent authority to amend or rescind the standard employment contract.

5 To enable them to discharge their responsibilities, the tripartite commissions have the right to obtain information and inspect any business document necessary to the conduct of their investigation. In the event of a dispute, a ruling is given by a body specially appointed for this purpose by the Confederation or the canton, as applicable.

6 Where necessary for the conduct of their investigations, on application the tripartite commissions may obtain personal data contained in corporate collective employment contracts from the Federal Statistical Office.[218](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12136)

[217](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12099) Inserted by Annex No 2 to the FA of 8 Oct. 1999 on Workers posted to Switzerland, in force since 1 June 2003 ([AS **2003** 1370](eli/oc/2003/231/en);[BBl **1999** 6128](eli/fga/1999/1%5F6128%5F5440%5F5092/en)).

[218](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12136) Inserted by Art. 2 No 2 of the FA of 17 Dec. 2004 approving and implementing the Protocol relating to the extension of the Agreement between the Swiss Confederation, of the one part, and the EU and its member states, of the other part, on the free movement of persons to new EU member states and approving the revision of the accompanying measures on the free movement of persons, in force since 1 April 2006 ([AS **2006** 979](eli/oc/2006/178/en);[BBl **2004** 5891 ](eli/fga/2004/1081/en)[6565](eli/fga/2004/1105/en)).


Art. 360c219

1 The members of tripartite commissions are subject to official secrecy; in particular they are obliged to keep secret from third parties any information of a commercial or private nature gained in the exercise of their office.

2 Such duty of secrecy remains in force even after membership of the tripartite commission has ceased.

[219](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12159) Inserted by Annex No 2 to the FA of 8 Oct. 1999 on Workers posted to Switzerland, in force since 1 June 2003 ([AS **2003** 1370](eli/oc/2003/231/en);[BBl **1999** 6128](eli/fga/1999/1%5F6128%5F5440%5F5092/en)).


Art. 360d220

1 The standard employment contract as defined in Article 360_a_ also applies to employees who work only temporarily within its geographical scope and to employees whose services have been loaned out.

2 It is not permissible to derogate from a standard employment contract as defined in Article 360_a_ to the detriment of the employee.

[220](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12188) Inserted by Annex No 2 to the FA of 8 Oct. 1999 on Workers posted to Switzerland, in force since 1 June 2004 ([AS **2003** 1370](eli/oc/2003/231/en);[BBl **1999** 6128](eli/fga/1999/1%5F6128%5F5440%5F5092/en)).


Art. 360e221

Employers’ and employees’ associations have the right to apply for a declaratory judgment as to whether an employer is in compliance with the standard employment contract as defined in Article 360_a_.

[221](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12221) Inserted by Annex No 2 to the FA of 8 Oct. 1999 on Workers posted to Switzerland, in force since 1 June 2004 ([AS **2003** 1370](eli/oc/2003/231/en);[BBl **1999** 6128](eli/fga/1999/1%5F6128%5F5440%5F5092/en)).


Art. 360f222

A canton issuing a standard employment contract pursuant to Article 360_a_ must forward a copy to the competent federal office[223](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12269).

[222](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12248) Inserted by Annex No 2 to the FA of 8 Oct. 1999 on Workers posted to Switzerland, in force since 1 June 2004 ([AS **2003** 1370](eli/oc/2003/231/en);[BBl **1999** 6128](eli/fga/1999/1%5F6128%5F5440%5F5092/en)).

[223](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12269) Now the State Secretariat for Economic Affairs (SECO).


A. Provisions from which no derogation is permissible to the detriment of the employer or the employee

Art. 361

1 It is not permissible to derogate from the following provisions to the detriment of either the employer or the employee by individual agreement, standard employment contract or collective employment contract:

Article 321_c_:

paragraph 1 (overtime);

Article 323:

paragraph 4 (advances);

Article 323_b_:

 paragraph 2 (set-off against countervailing claims);

Article 325:

 paragraph 2 (assignment and pledge of salary claims);

Article 326:

paragraph 2 (allocation of work);

Article 329_d_:

paragraph 2 and 3 (holiday pay);

Article 331:

 paragraphs 1 and 2 (employee benefits scheme contributions);

Article 331_b_:

 (assignment and pledge of claims to occupational benefits);[224](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12325)

 ...[225](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12344)

Article 334:

 paragraph 3 (termination of long-term employment relationships);

Article 335:

(termination of employment relationships);

Article 335_k_:

 (social plan during bankruptcy or composition proceedings)[226](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12374)

Article 336:

paragraph 1 (wrongful termination);

Article 336_a_:

 (compensation in the event of wrongful termination);

Article 336_b_:

(compensation procedure);

Article 336_d_:

 (termination by the employee at an inopportune juncture);

Article 337:

 paragraphs 1 and 2 (termination with immediate effect for good cause);

Article 337_b_:

 paragraph 1 (consequences of justified termination);

Article 337_d_:

 (consequences of failure to take up post or departure without just cause);

Article 339:

paragraph 1 (maturity of claims);

Article 339_a_:

(return);

Article 340_b_:

 paragraph 1 and 2 (consequences of infringement of the prohibition of competition);

Article 342:

paragraph 2 (civil law effects of public law);

 ...[227](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12448)

Article 346:

(early termination of apprenticeship contract);

Article 349_c_:

paragraph 3 (prevention from travelling);

Article 350:

(termination in special cases);

Article 350_a_:

 paragraph 2 (return).[228](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e12482)

2 Any agreement or clause of a standard employment contract or collective employment contract that derogates from the aforementioned provisions to the detriment of the employer or the employee is void.

[224](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12325) Inserted by Annex No 2 to the FA of 17 Dec. 1993 on the Vesting of Occupational Old Age, Survivors' and Invalidity Benefits, in force since 1 Jan. 1995 ([AS **1994** 2386](eli/oc/1994/2386%5F2386%5F2386/en);[BBl **1992** III 533](eli/fga/1992/3%5F533%5F529%5F477/en)).

[225](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12344) Repealed by Annex No 2 to the FA of 17 Dec. 1993 on the Vesting of Occupational Old Age, Survivors' and Invalidity Benefits, with effect from 1 Jan. 1995 ([AS **1994** 2386](eli/oc/1994/2386%5F2386%5F2386/en);[BBl **1992** III 533](eli/fga/1992/3%5F533%5F529%5F477/en)).

[226](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12374) Inserted by the Annex to the FA of 21 June 2013, in force since 1 Jan. 2014 ([AS **2013** 4111](eli/oc/2013/757/en);[BBl **2010** 6455](eli/fga/2010/1144/en)).

[227](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12448) Repealed by Annex No 5 to the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 ([AS **2000** 2355](eli/oc/2000/374/en);[BBl **1999** III 2829](eli/fga/1999/1%5F2829%5F2591%5F2427/en)).

[228](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e12482) Amended by No I of the FA of 18 March 1988, in force since 1 Jan. 1989 ([AS **1988** 1472](eli/oc/1988/1472%5F1472%5F1472/en);[BBl **1984** II 551](eli/fga/1984/2%5F551%5F574%5F494/en)).


Art. 363

A work contract is a contract whereby the contractor undertakes to produce a piece of work and the customer undertakes to pay the contractor for that work.


Art. 364

1 The contractor generally has the same duty of care as the employee in an employment relationship.[244](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e13130)

2 The contractor is obliged to carry out the work in person or to have it carried out under his personal supervision, unless the nature of the work is such that his personal involvement is not required.

3 Unless otherwise required by agreement or custom, the contractor is obliged to supply the resources, tools and machinery necessary for producing the work at his own expense.

[244](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13130) Amended by No II Art. 1 No 6 of the FA of 25 June 1971, in force since 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


Art. 365

1 Where the contractor is responsible for supplying the materials, he is liable to the customer for their quality and has the same warranty obligation as a seller.

2 Where materials are supplied by the customer, the contractor must treat them with all due care, give account of how they are used and return any that remain unused to the customer.

3 If, when producing the work, the contractor notes defects in the materials supplied or in the designated construction site or if any other circumstance arises which might compromise the correct or timely production of the work, he must inform the customer immediately, failing which he shall himself be liable for any adverse consequences.


3. Prompt commencement and contractual production of the work

Art. 366

1 Where the contractor does not begin the work on time or delays its production in breach of contract or, through no fault of the customer, falls so far behind that there is no longer any prospect of completing the work on time, the customer is entitled to withdraw from the contract without waiting for the agreed delivery date.

2 Where during the production of the work it becomes evident that, through the fault of the contractor, the work will be produced in a manner that is defective or otherwise contrary to the contract, the customer may set the contractor or have the contractor set an appropriate time limit within which to take remedial action and notify him that any failure to do so will result in the hire of a third party to take such remedial action or to complete the work at the risk and expense of the contractor.


Art. 367

1 The customer must inspect the condition of the delivered or completed work as soon as feasible in the normal course of business and must inform the contractor of any defects discovered.

2 Each party is entitled to request that the work be inspected by experts at his own expense and that a legal record be made of their findings.


b. Rights of the customer in the event of defects

Art. 368

1 Where the work is so defective or deviates from the contractual terms to such an extent that the customer has no use for it or cannot reasonably be expected to accept it, the customer may refuse acceptance and, if the contractor is at fault, seek damages.

2 In the case of minor defects in the work or only slight deviations from the contractual terms, the customer may reduce the price in proportion to the decrease in its value or require the contractor to rectify the work at his own expense and to pay damages if he was at fault, provided such rectification is possible without excessive cost to the contractor.

3 In the case of works produced on the customer’s land or property which by their nature cannot be removed without disproportionate detriment, the customer has only the rights stipulated in paragraph 2.


Art. 369

The rights accruing to the customer in respect of defects in the work are forfeited if he is at fault for such defects due to having given instructions concerning production of the work that were contrary to the express warnings of the contractor or for any other reason.


Art. 370

1 Once the completed work has been expressly or tacitly approved by the customer, the contractor is released from all liability save in respect of defects which could not have been discovered on acceptance and normal inspection or were deliberately concealed by the contractor.

2 Tacit approval is presumed where the customer omits to inspect the work and give notice of defects as provided by law.

3 Where defects come to light only subsequently, the customer must notify the contractor as soon as he becomes aware of them, otherwise the work is deemed to have been approved even in respect of such defects.


Art. 371245

1 The right of the customer to bring claims due to defects in the work prescribes two years from acceptance of the work. However, the prescriptive period amounts to five years where defects in a movable 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.

2 The customer’s claims in respect of defects in an immovable work against both the contractor and any architect or engineer who provided services in connection with such work prescribe five years after completion of the work.

3 Otherwise the rules governing prescription of the corresponding rights of a buyer apply _mutatis mutandis_.

[245](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13242) Amended by No I of the FA of 16 March 2012 (Limitation Periods for Guarantee Claims. Extension and Coordination), in force since 1 Jan. 2013 ([AS **2012** 5415](eli/oc/2012/621/en);[BBl **2011** 2889 ](eli/fga/2011/424/en)[3903](eli/fga/2011/597/en)).


Art. 372

1 The customer must pay for the work on completion or delivery.

2 Where the work is delivered in stages and payment in instalments has been agreed, the amount due for each stage of the work is payable on delivery thereof.


Art. 373

1 Where the payment was fixed in advance as an exact amount, the contractor is obliged to produce the work for the agreed amount and may not charge more even if the work entailed more labour or greater expense than predicted.

2 However, where production of the work was prevented or seriously hindered by extraordinary circumstances that were unforeseeable or excluded according to the conditions assumed by both parties, the court may at its discretion authorise an increase in the price or the termination of the contract.

3 The customer must pay the full price even where the work has entailed less labour than predicted.


Art. 374

Where the price was not fixed in advance or fixed only as an approximate amount, it is determined according to the value of the work produced and the expenses incurred by the contractor.


Art. 375

1 Where an estimate agreed with the contractor is exceeded by a disproportionate amount through no fault of the customer, he has the right to withdraw from the contract before or after completion.

2 In the case of construction work carried out on his land or property, the customer is entitled to an appropriate reduction in the price or, if the work is not yet complete, to call a halt to the work and withdraw from the contract against equitable compensation for work already done.


Art. 376

1 If the work is destroyed by accident prior to completion or delivery, the contractor is not entitled to payment for work done or of expenses incurred unless the customer is in default on acceptance of the work.

2 In this case any loss of materials is borne by the party that supplied them.

3 Where the work has been destroyed either due to a defect in the materials supplied or in the construction site designated by the customer or as a result of the method of production that he prescribed, the contractor shall be entitled to payment for the work already done and of expenses incurred that were not included in the price, provided he alerted the customer to the risks in good time, and also to damages if the customer was at fault.


III. Withdrawal by the customer against indemnity

Art. 377

The customer may withdraw from the contract at any time before the work is completed provided he pays for work already done and indemnifies the contractor in full.


IV. Impossibility of performance for reasons attributable to the customer

Art. 378

1 Where completion of the work is rendered impossible by chance occurrence affecting the customer, the contractor is entitled to payment for the work already done and of expenses incurred that were not included in the price.

2 Where the customer is at fault for the impossibility of performance, the contractor may also claim damages.


V. Death or incapacity of the contractor

Art. 379

1 Where the contractor dies or becomes incapable of finishing the work through no fault of his own, the work contract becomes void if it was concluded in view of the personal attributes of the contractor.

2 The customer is obliged to accept and pay for work already done to the extent it is of use to him.


Art. 380

A publishing contract is a contract whereby the originator – the author of a literary or artistic work or his legal successor – undertakes to entrust the work to a publisher, who undertakes to reproduce and distribute it.


Art. 381

1 The author’s rights to the work are transferred to the publisher to the extent and for as long as required for performance of the contract.

2 The originator must give warranty to the publisher that he had the right to make the work available for publication at the time the contract was concluded and, where it is subject to copyright protection, that he holds the copyright.

3 Where all or part of the work has already been made available for publication to a third party or the originator is aware that it has already been published, he must inform the publisher before entering into the contract.


Art. 382

1 As long as the editions of the work to which the publisher is entitled have not yet been exhausted, the originator may not make other arrangements regarding the work or parts thereof to the publisher’s detriment.

2 Newspaper articles or relatively short passages of magazine copy may be published elsewhere by the originator at any time.

3 Contributions to collections or anthologies and relatively lengthy magazine articles must not be published elsewhere by the originator within three months of the appearance in print of such contribution or article.


Art. 383

1 Where no clause was agreed that stipulates the number of editions, the publisher is entitled to produce only one.

2 Where nothing was agreed, the publisher determines the size of the edition but at the originator’s request must print at least enough to generate reasonable sales, and once the first print run is completed, he must not print any further copies.

3 Where the publishing contract confers publishing rights for several or all editions of a work and the publisher fails to produce a new edition after the previous edition is exhausted, the originator may have the court set a time limit for the publication of a new edition, failing which the publisher forfeits such rights.


Art. 384

1 The publisher is obliged to publish the work in an appropriate format without abridgment, addition or alteration, to take reasonable steps to publicise the work and to devote the customary resources in order to promote sales thereof.

2 He must fix the price at his discretion but not so high as to hinder sales of the work.


Art. 385

1 The author retains the right to correct and improve his work provided this does not prejudice the interests or increase the liability of the publisher, but must compensate the publisher for any unforeseen costs incurred as a result.

2 The editor may not produce a new version, edition or print run of the work without having previously given the author the opportunity to improve it.


Art. 386

1 The right to publish different works by the same author separately does not entail the right to publish them together in collected edition.

2 Similarly, the right to publish the complete works of an author or all of his works in a given genre does not give the publisher the right to publish the individual works separately.


Art. 387

Unless otherwise agreed with the publisher, the originator retains the exclusive right to commission a translation of the work.


Art. 388

1 The originator is deemed entitled to remuneration where in the circumstances the presumption is that publication of the work would necessarily involve such remuneration.

2 The amount thereof is fixed by the court on the basis of expert opinion.

3 Where the publisher is entitled to produce several editions, the presumption is that the level of remuneration and the other terms and conditions for subsequent editions are the same as for the first edition.


2. Due date for payment, record of sales and complimentary copies

Art. 389

1 The remuneration is payable as soon as the complete work or, in the case of works appearing in separate parts (volumes, fascicles, issues), each part thereof is printed and ready for distribution.

2 Where the remuneration is made partly or entirely contingent on expected sales, the publisher is obliged to produce the customary record of sales with corroborating documentation.

3 Unless otherwise agreed, the originator is entitled to receive the customary number of complimentary copies.


Art. 390

1 If the work is destroyed by chance after delivery to the publisher, he remains obliged to pay the author’s remuneration.

2 If the author has a second copy of the destroyed work, he must make it available to the publisher, and otherwise he must recreate the work where this is possible with little effort.

3 In either case he is entitled to appropriate compensation.


Art. 391

1 If an edition already produced by the publisher is partly or entirely destroyed by chance prior to its distribution, the publisher is entitled to replace the destroyed copies at his own expense without giving rise to a claim for additional remuneration on the part of the originator.

2 The publisher is obliged to replace the destroyed copies where this is possible without disproportionate expense.


III. Grounds for termination pertaining to the person of the author or the publisher

Art. 392

1 The contract is extinguished on the death or incapacity of the author before the work is completed or in the event that the author is prevented from completing it through no fault of his own.

2 By way of exception, the court may authorise the full or partial continuation of the contract, where this is deemed both feasible and equitable, and order any necessary measures.

3 In the event of the publisher’s bankruptcy, the originator may entrust the work to another publisher unless he is furnished with security for performance of the publishing obligations not yet due at the time bankruptcy proceedings were commenced.


D. Work on a project originated by the publisher

Art. 393

1 Where one or more authors accept a commission to work on a project originated by a publisher, they are entitled only to the agreed remuneration.

2 The publisher owns the copyright to the work as a whole.


Division Two: Types of Contractual Relationship

Art. 394

1 A mandate is a contract whereby the mandatee undertakes to conduct certain business or provide certain services in accordance with the terms of the contract.

2 Contracts for the provision of work or services not covered by any other specific type of contract are subject to the provisions governing mandates.

3 Remuneration is payable where agreed or customary.


Art. 395

A mandate is deemed to have been accepted where it has not been declined immediately and relates to business which is conducted by the mandatee by official appointment or on a professional basis or for which he has publicly offered his services.


Art. 396

1 Unless expressly defined, the scope of the mandate is determined by the nature of the business to which it relates.

2 In particular, it includes the authority to carry out such transactions as are required for performance of the mandate.

3 The mandatee requires special authority to agree a settlement, accept an arbitration award, accept liabilities under a bill of exchange, alienate or encumber land or make gifts.[246](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e13632)

[246](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13632) 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](eli/oc/2010/262/en);[BBl **2006** 7221](eli/fga/2006/914/en)).


Art. 397

1 A mandatee who has received instructions from the mandator on how to conduct the business entrusted to him may deviate from them only to the extent that circumstances prevent him from obtaining the mandator’s permission and that he may safely assume such permission would have been forthcoming had the mandator been aware of the situation.

2 Where such conditions are not satisfied and the mandatee nevertheless deviates from the mandator’s instructions to the latter’s detriment, the mandate is deemed to have been performed only if the mandatee accepts liability for the resultant damage.


Art. 397a247

If it is anticipated that the mandator will become permanently incapable of judgement, the mandatee must notify the adult protection authority at the mandator's domicile if such notification appears appropriate in order to safeguard the interests concerned.

[247](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13671) Inserted 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](eli/oc/2011/114/en);[BBl **2006** 7001](eli/fga/2006/899/en)).


Art. 398

1 The mandatee generally has the same duty of care as the employee in an employment relationship.[248](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e13702)

2 The mandatee is liable to the mandator for the diligent and faithful performance of the business entrusted to him.

3 He must conduct such business in person unless authorised or compelled by circumstance to delegate it to a third party or where such delegation is deemed admissible by custom.

[248](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13702) Amended by No II Art. 1 No 7 of the FA of 25 June 1971, in force since 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


Art. 399

1 A mandatee who has delegated the business entrusted to him to a third party without authority is liable for the latter’s actions as if they were his own.

2 Where such delegation was authorised, he is liable only for any failure to act with due diligence when selecting and instructing the third party.

3 In both cases, claims held by the mandatee against the third party may be enforced by the mandator directly against the third party.


Art. 400

1 The mandatee is obliged at the mandator’s request, which may be made at any time, to give an account of his activities under the mandate and to return anything received for whatever reason as a result of such activities.

2 He must pay interest on any sums which he is late in forwarding to the mandator.


Art. 401

1 Where the mandatee acting on the mandator’s behalf acquires claims in his own name against third parties, such claims pass to the mandator provided he has fulfilled all his obligations towards the mandatee under the mandate relationship.

2 The same applies in relation to the mandatee’s assets if the mandatee is bankrupt.

3 Similarly, where the mandatee is bankrupt, the mandator may claim chattels of which the mandatee took possession in his own name but on the mandator’s behalf, subject to the mandatee’s own rights of lien.


Art. 402

1 The mandator is obliged to reimburse the mandatee for expenses incurred in the proper performance of the mandate plus interest and to release him from obligations entered into.

2 The mandator must also compensate the mandatee for any damage incurred in performance of the mandate unless the mandator can prove that the damage occurred through no fault of his own.


IV. Liability of joint mandators and mandatees

Art. 403

1 Where several persons conclude a mandate as mandators, they are jointly and severally liable to the mandatee.

2 Where several persons conclude a mandate as mandatees, they are jointly and severally liable to the mandator and, save to the extent they are authorised to delegate to third parties, may commit the mandator only through joint action.


Art. 404

1 The mandate may be revoked or terminated at any time by either party.

2 However, a party doing so at an inopportune juncture must compensate the other for any resultant damage.


Art. 405

1 Unless otherwise agreed or implied by the nature of the business, the mandate ends on loss of capacity to act, bankruptcy, death or declaration of presumed death of the mandator or the mandatee.[249](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e13822)

2 However, where termination of the mandate jeopardises the mandator’s interests, the mandatee, his heir or his representative is obliged to continue conducting the business until such time as the mandator, his heir or his representative is able to conduct it himself.

[249](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13822) 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](eli/oc/2011/114/en);[BBl **2006** 7001](eli/fga/2006/899/en)).


II. Effects of extinction of the contract

Art. 406

Actions taken by the mandatee before he became aware of the termination of the mandate are binding on the mandator or his heir as if the contract had still been in force.


Section Onebis:250 The Marriage or Partnership Brokerage Mandate

Art. 406a

1 A person accepting a mandate to broker a marriage or partnership undertakes, in exchange for remuneration, to introduce the mandator to persons who are potential spouses or long-term partners.

2 The provisions governing simple mandates are applicable by way of supplement to marriage or partnership brokerage mandates.


B. Introduction of or to foreign nationals

Art. 406b

1 Where the person to be introduced travels from or to a foreign destination, the mandatee must reimburse the costs of the return journey if this takes place within six months of arrival.

2 Where the local authority has borne such costs, it is subrogated to the claim held by the person introduced against the mandatee.

3 The mandatee may claim reimbursement of such travel costs from the mandator only up to the maximum amount stipulated in the contract.


Art. 406c

1 Professional marriage and partnership brokerage activities involving foreign nationals require a licence issued by the authority designated by cantonal law and are regulated by that authority.

2 The Federal Council shall issue the implementing provisions and determine in particular:

a.

 the requirements for and term of the licence;

b.

 the penalties imposed on the mandatee in the event of non-compliance;

c.

 the obligation of the mandatee to furnish security for the costs of repatriating persons introduced under the mandate.


Art. 406d

The contract must be done in writing and contain the following information:

1.

the name and address of each party;

2.

 the number and nature of the services that the mandatee undertakes to provide and the amount of the remuneration and costs, in particular registration fees, corresponding to each service;

3.

 the maximum amount owed to the mandatee by way of reimbursement for his defraying the costs of return journeys of persons travelling to or from foreign countries (Art. 406_b_);

4.

the terms of payment;

 5.[251](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e13964)

 the right of the mandator to give written notice of the revocation of his offer to enter into the contract or of his acceptance of the offer without compensation within 14 days;

 6.[252](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e13987)

 the stipulation that the mandatee is prohibited from accepting any payment before the 14-day period has expired;

7.

 the right of the mandator to terminate the contract at any time, subject to any liability in damages arising from termination at an inopportune juncture.

[251](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13964) Amended by No I of the FA of 19 June 2015 (Revision of the right of revocation), in force since 1 Jan. 2016 ([AS **2015** 4107](eli/oc/2015/689/en);[BBl **2014** 921 ](eli/fga/2014/139/en)[2993](eli/fga/2014/549/en)).

[252](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e13987) Amended by No I of the FA of 19 June 2015 (Revision of the right of revocation), in force since 1 Jan. 2016 ([AS **2015** 4107](eli/oc/2015/689/en);[BBl **2014** 921 ](eli/fga/2014/139/en)[2993](eli/fga/2014/549/en)).


D. Entry into force, revocation, notice of termination

Art. 406e253

1 The contract does not become binding on the mandator until 14 days after he receives a duplicate signed by both parties. The mandatee must not accept any payment from the mandator before the 14-day period has expired.

2 During the period under paragraph 1, the mandator may give written notice of the revocation of his offer to enter into the contract or of his acceptance of the offer. Any advance waiver of this right is invalid. In addition, the provisions on the consequences of revocation (Art. 40_f_) apply_mutatis mutandis_.

3 Notice of termination must be done in writing.

[253](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14016) Amended by No I of the FA of 19 June 2015 (Revision of the right of revocation), in force since 1 Jan. 2016 ([AS **2015** 4107](eli/oc/2015/689/en);[BBl **2014** 921 ](eli/fga/2014/139/en)[2993](eli/fga/2014/549/en)).


Art. 406f254

[254](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14055) Repealed by No I of the FA of 19 June 2015 (Revision of the right of revocation), with effect from 1 Jan. 2016 ([AS **2015** 4107](eli/oc/2015/689/en);[BBl **2014** 921 ](eli/fga/2014/139/en)[2993](eli/fga/2014/549/en)).


Art. 406g

1 Before the contract is signed and throughout its duration, the mandatee must inform the mandator of any particular difficulties pertaining to the latter’s personal circumstances that might arise in the performance of the obligations thereunder.

2 When processing the mandator’s personal data, the mandatee is bound by a duty of discretion; the provisions of the Data Protection Act of 25 September 2020[255](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e14090) apply.[256](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e14099)

[255](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14090) [SR **235.1**](eli/cc/2022/491/en)

[256](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14099) Amended by Annex 1 No II 18 of the Data Protection Act of 25 Sept. 2020, in force since 1 Sept. 2023 ([AS **2022** 491](eli/oc/2022/491/en);[BBl **2017** 6941](eli/fga/2017/2057/en)).


Art. 406h

Where excessive remuneration or expenses have been agreed, the mandator may apply to the court to reduce these to an appropriate amount.


Section Two: The Letter of Credit and the Loan Authorisation

Art. 407

1 The provisions governing mandates and payment instructions are applicable to letters of credit in which the principal instructs the addressee to pay a specified person the sums requested by the latter, whether or not a maximum amount is stipulated.

2 Where the letter of credit does not stipulate a maximum amount and obviously disproportionate amounts are requested, the addressee must notify the principal and withhold payment pending further instructions.

3 The instruction conveyed by means of a letter of credit is deemed to have been accepted only where acceptance of a specified amount has been declared.


Art. 408

1 Where a person has received and accepted a mandate to grant or renew a loan to a third party in his own name and for his own account but on the authorisation of the mandator, the mandator is liable for the payee’s obligation in the same manner as a surety, provided that the mandatee has not exceeded his authority.

2 The mandator incurs such liability only where the authorisation was given in writing.


II. Incapacity of payee to enter into a contract

Art. 409

The mandator may not plead as defence against the mandatee the fact that the payee did not have personal capacity to enter into the contract.


III. Payment extension granted on own authority

Art. 410

The mandator ceases to be liable for the obligation where the mandatee has on his own authority granted the payee an extension of the term of payment or has neglected to proceed against him as instructed by the mandator.


Art. 411

The legal relationship between the mandator and the third party granted a loan is subject to the provisions governing the legal relationship between the surety and the principal debtor.


Art. 412

1 A brokerage contract is a contract whereby the broker is given the mandate to arrange an opportunity to conclude a contract or to facilitate the conclusion of a contract in exchange for a fee.

2 The brokerage contract is generally subject to the provisions governing simple mandates.


Art. 413

1 The broker’s fee becomes payable as soon as the information he has given or the intermediary activities he has carried out result in the conclusion of the contract.

2 Where the contract is concluded subject to a condition precedent, the fee becomes due only once such condition has been satisfied.

3 Where there is a contractual undertaking to reimburse the broker’s expenses, the broker may request such reimbursement even if the transaction fails to materialise.


Art. 414

Where the amount of remuneration is not stipulated, the parties are deemed to have agreed a fee determined by the tariff of fees, where such exists, and otherwise by custom.


Art. 415

Where the broker acts in the interests of a third party in breach of the contract or procures a promise of remuneration from such party in circumstances tantamount to bad faith, he forfeits his right to a fee and to any reimbursement of expenses.


Art. 416257

[257](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14243) Repealed by Annex No 2 to the FA of 26 June 1998, with effect from 1 Jan. 2000 ([AS **1999** 1118](eli/oc/1999/149/en);[BBl **1996** I 1](eli/fga/1996/1%5F1%5F1%5F1/en)).


Art. 417258

Where an excessive fee has been agreed for identifying an opportunity to conclude or for facilitating the conclusion of an individual employment contract or a purchase of immovable property, on application by the debtor the court may reduce the fee to an appropriate amount.

[258](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14265) Amended by No II, Art. 1, No 8 of the FA of 25 June 1971, in force since 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


Art. 418

The cantons reserve the right to enact special regulations governing stockbrokers, official brokers and employment agencies.


Art. 418a

1 An agent is a person who undertakes to act on a continuous basis as an intermediary for one or more principals in facilitating or concluding transactions on their behalf and for their account without entering into an employment relationship with them.[260](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e14325)

2 Unless otherwise agreed in writing, the provisions of this Section also apply to persons acting as agents by way of secondary occupation. The provisions governing del credere, prohibition of competition and termination of contracts for good cause may not be excluded to the detriment of the agent.

[260](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14325) Amended by No II Art. 1 No 8 and 9 of the FA of 25 June 1971, in force since 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


Art. 418b

1 The provisions governing brokerage contracts apply by way of supplement to agents acting as intermediaries and those governing commissions apply by way of supplement to agents acting as proxies.

2 ...[261](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e14358)

[261](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14358) Repealed by No 1 let. b of the Annex to the FA of 18 Dec. 1987 on Private International Law (IPLA ), with effect from 1 Jan. 1989 ([AS **1988** 1776](eli/oc/1988/1776%5F1776%5F1776/en);[BBl **1983** I 263](eli/fga/1983/1%5F263%5F255%5F239/en)).


Art. 418c

1 The agent must safeguard the principal’s interests with the diligence of a prudent businessman.

2 Except where otherwise agreed in writing, the agent may also act for other principals.

3 He may assume liability for the client’s payment or any other type of performance of the client’s obligations or for all or part of the costs of recovering receivables only by means of a written undertaking. The agent thereby acquires an inalienable entitlement to adequate special remuneration.


II. Duty of discretion and prohibition of competition

Art. 418d

1 The agent must not exploit or reveal the principal’s trade secrets with which he has been entrusted or of which he became aware by reason of the agency relationship even after the end of the commercial agency contract.

2 The provisions governing service contracts apply mutatis mutandis to a contractual prohibition of competition. Where such a prohibition has been agreed, on termination of the contract the agent has an inalienable entitlement to adequate special remuneration.


Art. 418e

1 The agent is considered to be authorised only to facilitate transactions, to receive notices of defects and other declarations whereby clients exercise or reserve their rights in respect of defective performance by the principal, and to exercise the principal’s rights to secure evidence thereof.

2 By contrast, the agent is not considered to be authorised to accept payments, to grant time limits for payments or to agree other modifications of the contract with clients.

3 Articles 34 and 44 paragraph 3 of the Federal Act of 2 April 1908 on Insurance Policies[262](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e14424) are reserved.

[262](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e14424) [SR **221.229.1**](eli/cc/24/719%5F735%5F717/en)


Art. 418f

1 The principal must do everything in his power to enable the agent to perform his activities successfully. In particular, he must furnish the agent with the necessary documentation.

2 He must notify the agent immediately if he anticipates that the number and/or volume of transactions that will be possible or desirable is likely to be substantially smaller than was agreed or to be expected in the circumstances.

3 Where a particular area or clientele is allocated to the agent, it is allocated to him exclusively unless otherwise agreed in writing.


1. On business facilitated and concluded

Art. 418g

1 The agent is entitled to the agreed or customary commercial agent’s commission or sales commission on all transactions that he facilitated or concluded during the agency relationship and, unless otherwise agreed in writing, on transactions concluded during the agency relationship by the principal without the agent’s involvement but with clients acquired by him for transactions of that kind.

2 An agent to whom a particular area or clientele has been allocated exclusively is entitled to the agreed commission or, in the absence of such an agreement, the customary commission on all transactions concluded during the agency relationship with clients belonging to that area or clientele.

3 Unless otherwise agreed in writing, the entitlement to the commission is established as soon as the transaction has been validly concluded with the client.


Art. 418h

1 The agent’s entitlement to commission lapses subsequently where the execution of a concluded transaction is prevented for reasons not attributable to the principal.

2 By contrast, the agent is not entitled to any commission where no consideration is given in return for the principal's performance, or where the consideration is so limited that the principal cannot reasonably be expected to pay any commission.


Art. 418i

Unless otherwise provided by agreement or custom, the commission falls due at the end of the calendar half-year in which the transaction was concluded, whereas in insurance business the commission falls due when the first annual premium has been paid.


Art. 418k

1 Where the agent is not obliged by written agreement to draw up a statement of commission, the principal must provide him with a written statement as at each due date indicating the transactions on which commission is payable.

2 On request, the agent must be granted access to the books of account or supporting documents that are relevant to such statement. The agent may not waive this right in advance.


Art. 418l

1 Unless otherwise provided by agreement or custom, the agent is entitled to a collection commission on any amounts he collects and delivers to the principal in accordance with the latter’s instructions.

2 At the end of the agency relationship the agent loses his authority to collect payments and his entitlement to further collection commission.


Art. 418m

1 The principal is obliged to pay the agent appropriate compensation if, in breach of his legal or contractual obligations, he is at fault in preventing the agent from earning the volume of commission that was agreed or to be expected in the circumstances. Any agreement to the contrary is void.

2 Where an agent who is permitted to represent only one principal at a time is prevented from working through no fault of his own by illness, Swiss compulsory military service or similar reasons, he is entitled for a relatively short period to adequate compensation for loss of income, provided the commercial agency contract has lasted for at least one year. The agent may not waive this right in advance.


Art. 418n

1 Unless otherwise provided by agreement or custom, the agent is not entitled to reimbursement of costs and expenses incurred in the normal performance of his duties, but is entitled to reimbursement of those incurred as a result of special instructions issued by the principal or in the capacity of agent without authority for the principal, such as freight charges and customs duties.

2 The duty to reimburse costs and expenses obtains even where the transaction fails to materialise.


Art. 418o

1 By way of securing claims due to him under the commercial agency relationship and, in the event that the principal becomes insolvent, claims that are not yet due, the agent has a special lien on chattels and securities that he holds pursuant to the contract and on any payments received from clients by virtue of an authority to collect with which he has been vested, and this right of lien may not be waived in advance.

2 The lien does not extend to price lists and client lists.


Art. 418p

1 Where the commercial agency contract was concluded for a fixed term or its duration is limited by virtue of its purpose, it ends without notice on expiry of that term.

2 Where a fixed-term commercial agency contract is tacitly extended by both parties on expiry of its duration, it is deemed to have been renewed for the same duration subject to a maximum of one year.

3 Where termination is subject to prior notice, failure by both parties to give notice is deemed tacit renewal of the contract.


Art. 418q

1 Where the commercial agency contract was not concluded for a fixed term and its duration is not limited by virtue of its purpose, it may be terminated by either party during the first year of the contract by giving one month’s notice expiring at the end of the following calendar month. Any agreement of a shorter notice period must be done in writing.

2 Where the contract has lasted for at least one year, it may be terminated by giving two months’ notice expiring at the end of a calendar quarter. However, the parties may agree a longer notice period or a different termination date.

3 The notice period must be the same for both the principal and the agent.


Art. 418r

1 The principal and the agent may at any time terminate the contract with immediate effect for good cause.

2 The provisions governing service contracts apply _mutatis mutandis_.


Art. 418s

1 The agency relationship ends on the death or incapacity of the agent or the bankruptcy of the principal.

2 Where in essence the agency relationship was entered into with the principal in person, it ends on his death.


Art. 418t

1 Unless otherwise provided by agreement or custom, the agent is entitled to commission on orders subsequently placed by a client acquired by him during the agency relationship only if such orders are placed before the end of the commercial agency contract.

2 On termination of the agency relationship, all the agent’s claims for commission or reimbursement of expenses fall due.

3 A later due date may be agreed in writing for commission on transactions to be performed in full or in part after the agency relationship has ended.


Art. 418u

1 Where the agent’s activities have resulted in a substantial expansion of the principal’s clientele and considerable benefits accrue even after the end of the agency relationship to the principal or his legal successor from his business relations with clients acquired by the agent, the agent or his heirs have an inalienable claim for adequate compensation, provided this is not inequitable.

2 The amount of such claim must not exceed the agent’s net annual earnings from the agency relationship calculated as the average for the last five years or, where shorter, the average over the entire duration of the contract.

3 No claim exists where the agency relationship has been dissolved for a reason attributable to the agent.


Art. 418v

By the time the agency relationship ends, each contracting party must return to the other everything received from him or from third parties for his account during the relationship. The contracting parties’ rights of lien are unaffected.


Title Fourteen: Agency without Authority

Art. 419

Any person who conducts the business of another without authorisation is obliged to do so in accordance with his best interests and presumed intention.


Art. 420

1 The agent is liable for negligence.

2 However, where the agent acted in order to avert imminent damage to the principal, his liability is judged more leniently.

3 Where agency activities are carried out against the express or otherwise recognisable will of the principal and the prohibition was neither immoral nor illegal, the agent is also liable for chance occurrences unless he can prove that they would have occurred even without his involvement.


III. Liability of agents lacking capacity to enter into contracts

Art. 421

1 Where the agent lacked the capacity to enter into contractual commitments, he is liable for his agency activities only to the extent that he is enriched or alienated the enrichment in bad faith.

2 Further liability in tort is reserved.


I. Agency in the principal’s best interests

Art. 422

1 Where agency activities were in the best interests of the principal, he is obliged to reimburse the agent for all expenses that were necessary or useful and appropriate in the circumstances plus interest, to release him to the same extent from all obligations assumed and to compensate him at the court’s discretion for any other damage incurred.

2 Provided the agent acted with all due care, the claim accrues to him even if the intended outcome was not achieved.

3 Where the agent’s expenses are not reimbursed, he has the right of repossession in accordance with the provisions governing unjust enrichment.


II. Business conducted in the agent’s interests

Art. 423

1 Where agency activities were not carried out with the best interests of the principal in mind, he is nonetheless entitled to appropriate any resulting benefits.

2 The principal is obliged to compensate the agent and release him from obligations assumed only to the extent the principal is enriched.


Art. 424

Where the agent’s actions are subsequently approved by the principal, the provisions governing mandates become applicable.


Art. 425

1 A buying or selling commission agent is a person who, in return for a commission, buys or sells chattels or securities in his own name but for the account of another (the principal).

2 The provisions governing mandates apply to the commission agency relationship, unless otherwise provided in this Title.


Art. 426

1 The commission agent must keep the principal informed and in particular must notify him immediately of the performance of the commission contract.

2 He is obliged to insure the goods on commission only where so instructed by the principal.


Art. 427

1 Where the goods for sale on commission are evidently defective, the commission agent must safeguard the rights of recourse against the carrier, secure evidence of the defective condition of the goods, preserve the goods where possible and notify the principal immediately.

2 If the commission agent omits to fulfil these obligations, he is liable for any damage caused by such omission.

3 Where there is a risk that the goods for sale on commission will rapidly deteriorate, the commission agent has the right and, should the interests of the principal so require, the obligation to arrange their sale with the assistance of the competent authority of the place where the goods are located.


Art. 428

1 Where the commission agent sells goods below the minimum price instructed, he is liable to the principal for the difference unless he can prove that such sale averted damage that the principal would otherwise have incurred and that he was unable to seek the principal’s instructions in the time available.

2 Furthermore, where the commission agent is at fault, he must compensate the principal for any other damage caused by the breach of contract.

3 Where the commission agent buys at a lower price or sells at a higher price than instructed by the principal, he is not permitted to retain the profit but must credit it to the principal.


Art. 429

1 A commission agent who makes cash advances or extends credit to a third party without the consent of the principal does so at his own risk.

2 However, where sale on credit is the customary commercial practice at the place of sale, the commission agent is entitled to sell on credit unless the principal has instructed otherwise.


Art. 430

1 Except where he extends credit without authority, the commission agent is liable for the debtor’s payment or performance of other obligations only to the extent that he has expressly assumed such liability or if this is a customary commercial practice at his place of business.

2 A commission agent who assumes liability for performance by the debtor is entitled to special remuneration (del credere commission).


1. Reimbursement of advances and expenses

Art. 431

1 The commission agent is entitled to reimbursement of all advances, expenses and other costs incurred on the principal’s behalf plus interest on all such amounts.

2 He may also claim remuneration for storage and transport costs, though not for the wages of his employees.


Art. 432

1 The commission agent is entitled to commission on execution of the transaction or failure to execute it for a reason attributable to the principal.

2 In the case of transactions that could not be executed for other reasons, the commission agent is entitled to remuneration for his endeavours only to the extent provided for by local custom.


b. Forfeiture and conversion into transaction for own account

Art. 433

1 The commission agent forfeits his right to commission if he has acted improperly towards the principal and in particular if he has secured an inflated purchase price or a deflated sale price.

2 Moreover, in both these cases the principal has the right to take action against the commission agent himself as buyer or seller.


Division Two: Types of Contractual Relationship

Art. 434

The commission agent has a special lien in respect of the goods on commission and the sale proceeds.


Art. 435

1 Where the goods on commission remain unsold or the order to sell is withdrawn and the principal fails to take them back or otherwise dispose of them within a reasonable time, the commission agent may apply to the competent authority at the place where the goods are located to arrange to have them sold at auction.

2 The auction may be ordered without first hearing the principal if neither he nor a representative is present at that location.

3 However, official notice must be served on the principal before the auction is held, unless the goods in question are susceptible to rapid deterioration.


Art. 436

1 Unless otherwise instructed by the principal, a commission agent instructed to buy or sell goods, bills of exchange or other securities with a quoted exchange or market price is entitled, in his own capacity as seller, to deliver the goods he is instructed to buy or, in his own capacity as buyer, to purchase the goods he is instructed to sell.

2 In both cases, the commission agent must account for the exchange or market price that applied at the time the instruction was executed and is entitled to both the usual commission and reimbursement of the expenses normally incurred in commission business.

3 In other respects the transaction is treated as a contract of sale.


b. Presumption of trading for own account

Art. 437

Where the commission agent is permitted to act for his own account and he notifies the principal that the instruction has been executed without naming another person as buyer or seller, the presumption is that he himself has assumed the obligations of the buyer or seller.


c. Lapse of right to trade for own account

Art. 438

The commission agent is not permitted to act as buyer or seller if the principal has withdrawn his mandate and the notice of withdrawal reached the commission agent before he dispatched the notice of execution.


Art. 439

A forwarding agent or carrier who in return for payment undertakes to carry or forward goods for the consignor’s account but in his own name is regarded as a commission agent but is subject to the provisions governing contracts of carriage in relation to the forwarding of the goods.


Art. 440

1 A carrier is a person who undertakes to transport goods in return for payment (freight charge).

2 The provisions governing mandates apply to contracts of carriage unless otherwise provided in this Title.


Art. 441

1 The consignor must give the carrier precise details of the address of the consignee and the place of delivery, the number, type of packaging, weight and content of packages, the delivery date and the transport route, as well as the value of any valuable objects.

2 The consignor is liable for any detriment arising from missing or inaccurate details.


Art. 442

1 The consignor ensures that the goods are properly packaged.

2 He is liable for the consequences of defects in packaging that are not externally apparent.

3 By contrast, the carrier is liable for the consequences of defects that were externally apparent if he accepted the goods without reservation.


Art. 443

1 While the goods are in the carrier’s possession, the consignor has the right to reclaim them against compensation for the carrier for expenses incurred and any detriment resulting from their repossession, except where:

1.

 a bill of lading has been issued by the consignor and delivered to the consignee by the carrier;

2.

 the consignor has arranged for an acknowledgement of receipt to be issued by the carrier and cannot return it;

3.

 the carrier has sent the consignee written notice that the goods have arrived and are ready for collection;

4.

 the consignee has requested delivery of the goods after they have arrived at destination.

2 In these cases the carrier is obliged to comply solely with the consignee’s instructions, although where the consignor has arranged for an acknowledgement of receipt to be issued by the carrier and the goods have not yet arrived at destination, the carrier is bound by such instructions only if the acknowledgement of receipt has been delivered to the consignee.


Art. 444

1 Where the goods are rejected, the associated claims remain unpaid or the consignee cannot be contacted, the carrier must inform the consignor and in the interim place the goods in storage or deposit them with a third party at the risk and expense of the consignor.

2 If neither consignor nor consignee disposes of the goods within a reasonable period, in the same manner as a commission agent the carrier may apply to the competent authority at the place where the goods are located to arrange to have them sold in favour of the rightful beneficiary.


Art. 445

1 Where the goods are likely to deteriorate rapidly or their probable value does not cover the associated costs, the carrier must without delay arrange for official confirmation of that fact and may arrange for the sale of the goods in the same manner as when delivery is not possible.

2 Where possible, the interested parties must be informed that such sale has been ordered.


Art. 446

When exercising the rights conferred on him with regard to the handling of the goods, the carrier must safeguard the interests of their owner to the best of his ability and is liable in damages for any fault on his part.


Art. 447

1 If the goods are lost or destroyed, the carrier must compensate their full value unless he can prove that the loss or destruction resulted from the nature of the goods or through the fault of the consignor or the consignee or occurred as a result of instructions given by either or of circumstances which could not have been prevented even by the diligence of a prudent carrier.

2 The consignor is deemed to be at fault if he fails to inform the carrier of any especially valuable freight goods.

3 Agreements stipulating an interest in excess of the full value of the goods or an amount of compensation lower than their full value are reserved.


Art. 448

1 Subject to the same conditions and reservations as apply to the loss or destruction of goods, the carrier is liable for any damage resulting from late delivery, damage in transit or the partial destruction of the goods.

2 Unless specifically agreed otherwise, the damages claimed may not exceed those for total loss.


Art. 449

The carrier is liable for all accidents and errors occurring during the carriage of goods, regardless of whether he transports them to the final destination or sub-contracts the task to another carrier, subject to right of recourse against the sub-contractor to whom goods are entrusted.


Art. 450

The carrier must notify the consignee immediately on arrival of the goods.


Art. 451

1 Where the consignee disputes claims attaching to the goods, he may demand delivery only if the disputed amount is deposited with the court.

2 The deposited amount replaces the goods with regard to the carrier’s lien.


Art. 452

1 Unconditional acceptance of the goods and payment of the freight charge extinguish all claims against the carrier, except in cases of deliberate deceit or gross negligence.

2 Furthermore, the carrier remains liable for damage that is not externally apparent where such damage is discovered within the time in which, in the circumstances, the consignee was able or might reasonably be expected to inspect the goods, provided he notifies the carrier immediately on discovering such damage.

3 However, such notification must be given no later than eight days after delivery.


Art. 453

1 In any dispute, the competent authority at the place where the goods are located may, at the request of either party, order that the goods be deposited with a third party or, where necessary, sold after their condition has been established.

2 The sale may be forestalled by satisfying all claims allegedly attaching to the goods or by depositing the amount of such claims with the court.


Art. 454

1 Actions for damages against the carrier prescribe one year after the scheduled delivery date in the case of destruction, loss or delay and one year after the date on which the goods were delivered to the consignee in the case of damage.

2 The consignee and the consignor may always assert their claims against the carrier by way of defence, provided that objections are lodged within one year and that the claim is not extinguished by acceptance of the goods.

3 The above does not apply to cases of malice or gross negligence on the part of the carrier.


Art. 455

1 Carriers operating under state licence are not empowered to exclude or restrict in advance the application of the provisions governing the carrier’s liability to their own benefit by means of special agreement or regulations governing their operations.

2 However, the parties may derogate contractually from said provisions to the extent permitted by this Title.

3 The special provisions governing contracts for the carriage of goods by providers of postal services, the railways and steamers are unaffected.[263](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e15207)

[263](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e15207) Amended by Annex No II 2 of the Postal Services Act of 17 Dec. 2010, in force since 1 Oct. 2012 ([AS **2012** 4993](eli/oc/2012/585/en);[BBl **2009** 5181](eli/fga/2009/917/en)).


Art. 456

1 Any carrier or forwarding agent who uses a state transport facility to perform carriage obligations he has assumed or who assists in the carriage of goods by such a facility is subject to the special provisions governing freight transport that apply to that facility.

2 However, any agreement to the contrary between the carrier or forwarding agent and the principal is unaffected.

3 This article does not apply to road hauliers.


Art. 457

A forwarding agent who uses a state transport facility in order to perform obligations under a contract of carriage may not deny liability on grounds of insufficient right of recourse where right of recourse was forfeited through his own fault.


Title Seventeen: Registered Power of Attorney and other Forms of Commercial Agency

Art. 458

1 A registered attorney is a person who has been expressly or tacitly granted the authority to conduct operations and to sign per procuration on behalf of a trading, manufacturing or other commercial business by its owner.

2 The owner of the business must give notice of the granting of the power of attorney for entry in the commercial register but is bound by the actions of the registered attorney even before it is entered.

3 The granting of authority to conduct other kinds of business or transactions also requires entry of the attorney in the commercial register.


Art. 459

1 In dealings with bona fide third parties, the registered attorney is deemed authorised to commit the owner of the business by signing bills of exchange and to carry out on his behalf all types of transaction that fall within the scope of the commercial operations and business affairs of the owner.

2 The registered attorney is not authorised to alienate or encumber immovable property unless expressly vested with such powers.


Art. 460

1 The registered power of attorney may be limited to the business affairs of a specific branch.

2 It may be conferred on two or more persons collectively (joint power of attorney) such that the signature of one attorney is not binding on the principal unless others participate in the transaction as prescribed.

3 Other limitations of authority have no legal effect on bona fide third parties.


Art. 461

1 Any withdrawal of the power of attorney must be entered in the commercial register, even where no entry was made of its conferral.

2 As long as such withdrawal has not been registered and published, the registered power of attorney remains in force as against bona fide third parties.


Art. 462

1 Where the owner of a trading, manufacturing or other commercial establishment appoints a person to represent him in managing the affairs of the business as a whole or in carrying out certain transactions on behalf of the business without granting that person a registered power of attorney, the agency authority of the representative extends to all activities that fall within the normal scope of the commercial operations of the business or are normally connected with the transactions in question.

2 However, a commercial agent is not authorised to sign bills of exchange, take out loans or conduct litigation unless expressly granted such powers.


Art. 463264

[264](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e15330) Repealed by No II Art. 6 No 1 of the FA of 25 June 1971, with effect from 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


Art. 464

1 A registered attorney or commercial agent appointed to manage the affairs of the business as a whole or employed by the owner of the business may not without the owner’s consent engage in transactions for his own account or that of a third party in the economic sectors in which the owner himself is active.[265](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e15358)

2 In the event of any violation of this provision, the owner of the business may seek compensation for the resultant damage and appropriate the relevant transactions for his own account.

[265](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e15358) Amended by No II Art. 1 No 10 of the FA of 25 June 1971, in force since 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


E. Extinction of power of attorney and other forms of commercial agency

Art. 465

1 The registered power of attorney and authority to act as commercial agent may be revoked at any time without prejudice to rights accruing to the parties concerned under any existing individual contract of employment, partnership agreement, mandate or the like.[266](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e15387)

2 The death or incapacity of the owner of the business does not extinguish the registered power of attorney or authority to act as commercial agent.

[266](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e15387) Amended by No II Art. 1 No 11 of the FA of 25 June 1971, in force since 1 Jan. 1972 ([AS **1971** 1465](eli/oc/1971/1465%5F1461%5F1461/en);[BBl **1967** II 241](eli/fga/1967/2%5F241%5F249%5F177/en)). See also the Final and Transitional Provisions of Title X, at the end of this Code.


Art. 466

By means of a payment instruction, the recipient of the instruction (agent) is authorised to transfer money, securities or other fungibles for the account of the party issuing the instruction (principal) to the payee and the payee is authorised to receive them in his own name.


I. Relations between principal and payee

Art. 467

1 Where the purpose of the payment instruction is to redeem a debt owed by the principal to the payee, the debt is redeemed only once the agent has made the transfer.

2 However, where the payee has accepted a payment instruction, he may assert his claim against the principal only if he called for payment from the agent but did not receive it before expiry of the term stipulated in the payment instruction.

3 A creditor who does not wish to accept a payment instruction received from his debtor must notify the debtor immediately in order to avoid liability in damages.


Art. 468

1 An agent who notifies the payee that he accepts the payment instruction unreservedly is obliged to pay the payee and may raise against him only such objections as arise from their personal relationship or from the terms of the payment instruction, not objections arising from his relationship with the principal.

2 An agent who is indebted to the principal is obliged to comply with the payment instruction, provided that in doing so his own position is in no way prejudiced.

3 Even in this case the agent is not obliged to declare his acceptance prior to payment, unless otherwise agreed with the principal.


Art. 469

Where the agent refuses to make the payment called for by the payee or declares in advance that he will not make it, the payee must notify the principal immediately in order to avoid liability in damages.


Art. 470

1 The principal may revoke the payment instruction as against the payee unless he issued it in order to redeem a debt to the payee or otherwise in favour of the latter.

2 He may revoke it as against the agent provided the agent has not notified the payee of his acceptance.

2bis Unless the regulations of a payment system provide otherwise, a payment instruction in a cashless transaction becomes irrevocable as soon as the transfer amount is debited from the principal's account.[267](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fn-d8e15476)

3 In the event of bankruptcy proceedings against the principal, payment instructions that have not yet been accepted are deemed revoked.

[267](https://www.fedlex.admin.ch/eli/cc/27/317%5F321%5F377/en#fnbck-d8e15476) Inserted by Annex No 3 of the Uncertificated Securities Act of 3 Oct. 2008, in force since 1 Oct. 2009 ([AS **2009** 3577](eli/oc/2009/450/en);[BBl **2006** 9315](eli/fga/2006/1228/en)).


D. Payment instructions relating to securities

Art. 471

1 The provisions of this Title apply to payment instructions made out to the bearers of negotiable securities on the premise that each such bearer is considered to be the payee in relation to the agent, whereas the rights as between the principal and the payee are established only in respect of each transferor and transferee.

2 The special provisions governing cheques and payment instructions similar in nature to bills of exchange are unaffected.


Title Nineteen: The Contract of Bailment

Art. 472

1 A contract of bailment is a contract in which the bailee undertakes to take receipt of a chattel entrusted to him by the bailor and to keep it in a safe place.

2 The bailee may claim remuneration only where this has been expressly stipulated or was to be expected in the circumstances.


Art. 473

1 The bailor must reimburse the bailee for expenses incurred in performance of the contract.

2 He is liable to the bailee for damage caused by the bailment unless he can prove that such damage occurred through no fault of his own.


Art. 474

1 The bailee may not use the deposited chattel without the bailor’s consent.

2 If he does, he must pay the bailor adequate compensation and is liable for any chance occurrence unless he can prove that such occurrence would have affected the chattel in any event.


Art. 475

1 The bailor may reclaim the bailed chattel together with any growth or accrual thereto at any time, even where a fixed term was agreed for the bailment.

2 However, the bailor must reimburse the bailee for expenses incurred with a view to bailment over the agreed term.


Art. 476

1 The bailee may return the bailed chattel before expiry of the stipulated term only where unforeseen circumstances render the bailee unable to keep the chattel safely or without detriment to himself.

2 Where no term was agreed for the bailment, the bailee may return the chattel at any time.


Art. 477

The bailed chattel is returned at the risk and expense of the bailor at the same place where it was to be kept.


Art. 478

Where several bailees have jointly received a chattel in bailment, they are jointly and severally liable.


Art. 479

1 If a third party claims title to the bailed chattel, the bailee remains obliged to return it to the bailor unless it has been attached by court order or the third party has brought action to establish title against the bailor.

2 In this event, the bailee must inform the bailor immediately.


Art. 480

Where two or more persons, with a view to protecting their rights, deposit an object whose legal status is disputed or uncertain in bailment with a third party (official receiver), the latter may return it only with the consent of the interested parties or as directed by the court.


Art. 481

1 Where money is deposited with the express or tacit agreement that the bailee is not obliged to return precisely the same notes and coin but merely the same sum of money, all attendant risks and benefits pass to the bailee.

2 A tacit agreement is presumed if the sum of money was unsealed and open when deposited.

3 Where other fungibles or securities are deposited in bailment, the bailee has power to dispose of them only if expressly authorised so to do by the bailor.


I. Right to issue documents of title to goods

Art. 482

1 A warehouse keeper who publicly offers warehousing services may apply to the competent authority for the right to issue documents of title to the goods kept in storage.

2 These documents of title to goods are securities that confer the right to take delivery of the goods stored.

3 They may be made out to a named person, to order or to bearer.


II. Warehouse keeper’s duty of safe-keeping

Art. 483

1 A warehouse keeper has the same duty of care in relation to stored goods as a commission agent.

2 Where feasible, he must inform the bailor of any changes in the condition of the goods that call for further measures.

3 He must allow the bailor to inspect the goods and to take test samples during business hours and to take measures necessary to preserve the goods at any time.


Art. 484

1 A warehouse keeper may mix fungibles with other items of the same kind and quality only if expressly authorised so to do.

2 Each bailor may reclaim a number corresponding to his deposit from any goods thus intermingled.

3 The warehouse keeper may make the required division without the involvement of the other bailors.


Art. 485

1 The warehouse keeper is entitled to the agreed or customary warehouse fee and to reimbursement of all expenses not resulting from the actual storage of the goods (freight charges, customs duties, repairs).

2 Such expenses must be reimbursed immediately, whereas the warehouse fee is payable in arrears for every three months of storage and in any event whenever all or some of the goods are reclaimed.

3 The warehouse keeper’s claims are secured by a lien on the goods, provided he remains in possession of the goods or may dispose of them by means of a document of title to goods.


Art. 486

1 The warehouse keeper has the same obligation to return the goods as an ordinary bailee, except that he remains bound to observe the contractual storage duration even where an ordinary bailee would be entitled to return them sooner owing to unforeseen circumstances.

2 Where a document of title to goods has been issued, the warehouse keeper is entitled and obliged to release the goods only to the beneficiary named therein.


Art. 487

1 Innkeepers and hoteliers who provide accommodation for persons not known to them are liable for any damage, destruction or misappropriation of personal effects brought onto the premises by their guests unless they can prove that such damage is attributable to the guest himself or to his visitors, companions or staff or to force majeure or to the nature of the objects in question.

2 However, the liability for personal effects brought onto the premises by guests is subject to an upper limit of 1,000 francs for each guest where no fault can be ascribed to the innkeeper or hotelier or his staff.


Art. 488

1 Where valuables, large sums of money or securities are not deposited with the innkeeper or hotelier, the latter is only liable for them if he or his staff are at fault.

2 Where he accepts or declines the deposit of such items, he is liable for their full value.

3 Where the guest cannot reasonably be expected to deposit such items, the innkeeper or hotelier is liable for them as for the other personal effects of the guest.


Art. 489

1 The guest’s claims are forfeited if he fails to report any damage to the innkeeper or hotelier immediately.

2 The innkeeper or hotelier may not exempt himself from liability by posting disclaimer notices on the premises or making such liability dependent on conditions not specified in law.


Art. 490

1 Owners of stables are liable for any damage, destruction or misappropriation of animals, vehicles and their appurtenances entrusted to or otherwise received by them or by their staff unless they can prove that such damage is attributable to the bailor or his visitors, companions or staff or to force majeure or to the nature of the animals or objects deposited.

2 However, liability for animals, vehicles and appurtenances accommodated in stables is subject to a maximum of 1,000 francs for each bailor where no fault can be ascribed to the stable owner or his staff.


Art. 491

1 Innkeepers, hoteliers and stable owners have a lien on the animals and objects brought onto their premises as security for their claims in connection with accommodation and storage.

2 The provisions governing the landlord’s or lessor’s right of lien apply _mutatis mutandis_.


Art. 492

1 Under a contract of surety, the surety undertakes as against the creditor of the principal debtor to vouch for performance of the obligation.

2 A contract of surety presupposes the existence of a valid primary obligation. A future or conditional obligation may be guaranteed by means of a contract of surety provided that the primary obligation takes effect.

3 A person standing surety for performance of an obligation resulting from a contract that is not binding on the principal debtor as a result of error or incapacity to make a contract is liable for such obligation, subject to the conditions and doctrines of the law governing surety, if he was aware of the defect vitiating the contract at the time he gave his commitment. The same applies to any person who stands surety for performance of an obligation that is time-barred for the principal debtor.

4 Unless the law provides otherwise, the surety may not waive in advance the rights conferred on him under this Title.


Art. 493

1 The contract of surety is valid only where the surety makes a written declaration and indicates in the surety bond the maximum amount for which he is liable.

2 Where the surety is a natural person, his declaration must additionally be done in the form of a public deed in conformity with the rules in force at the place where the instrument is drawn up. Where the liability under surety does not exceed the sum of 2,000 francs, it is sufficient for the surety to indicate the amount for which he is liable and the existence of joint and several liability, if any, in his own hand in the surety bond itself.

3 Contracts of surety in favour of the Confederation or its public institutions or in favour of a canton for the performance of public law obligations, such as customs duties, taxes and the like, and for freight charges merely require the written declaration of the surety and an indication in the surety bond itself of the amount for which he is liable.

4 Where the total liability is divided into smaller amounts in order to circumvent the formal requirement of a public deed, the formal requirements for contracts of surety for such partial amounts are the same as those prescribed for the total.

5 The sole formal requirement for subsequent amendments to the surety, except where the total liability is increased or the surety is transformed from a simple surety into a joint and several surety, is that they be done in writing. Where the principal obligation is assumed by a third party such that the debtor is released, the contract of surety is extinguished unless the surety has consented in writing to such assumption.

6 The formal requirements applicable to the contract of surety also apply to the conferral of special authority to enter into a contract of surety and the promise to stand surety for the contracting party or a third party. The parties may agree in writing to limit the surety’s liability to that portion of the principal obligation that is satisfied first.

7 The Federal Council may cap the fee payable for drawing up the surety bond as a public deed.