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Switzerland

Published online by Cambridge University Press:  15 November 2019

Pierre Widmer
Affiliation:
Emeritus Professor, Swiss Institute of Comparative Law, Lausanne/Berne, Switzerland
Bénédict Winiger
Affiliation:
Professor of Law, University of Geneva, Switzerland
Caroline Duret
Affiliation:
Doctoral Candidate, Faculty of Law, University of Geneva, Switzerland
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Summary

QUESTIONS

TRACING THE BORDERLINES

A. DISTINCTION BETWEEN TORT AND CONTRACT

In the Swiss Code of Obligations (SCO; Classified compilation – Recueil systématique du droit fédéral, RS 220), Swiss law distinguishes three main sources for the establishment of an obligation: (1) contract (arts 1 – 40 SCO); (2) tort (arts 41 – 61 SCO); and (3) unjust enrichment (arts 62 – 67 SCO). Further, in Section 2 of Title 2, entitled ‘The Consequences of Non-Performance of Obligations’, art 97 SCO establishes the liability of the obligor failing to properly discharge his obligation by stating that he has to compensate ‘the resulting loss or damage, unless he can prove that he was not at fault’. This very broad wording is generally seen as covering typical non-performance (complete failure or delay) as well as the so-called ‘positive breach of contract’, ie the fact that improper performance by the obligor causes damage by infringing rights (bodily integrity, property) of the obligee. There is also a discussion about the possibility to adopt the concept – developed by the German doctrine – of the so-called ‘contract with protective effects for third parties’ (Vertrag mit Schutzwirkung zugunsten Dritter) in Swiss law; this would mean that the duty to perform properly would also work in favour of a certain (limited) circle of ‘innocent by-standers.

Furthermore, art 99 para 3 SCO prescribes that ‘the provisions governing liability in tort apply mutatis mutandis to a breach of contract’ if one of the parties is at fault, which obviously means that contractual liability is a different category to liability in tort. A glaring difference when comparing art 97 with art 41 SCO (general clause for liability in tort) is that, in the contractual context, the burden of proof relating to fault is reversed (in fact, this difference is more apparent than real, see below no 49; for further – seeming – differences, see nos 26 f and nos 39 ff).

B. EXISTENCE OF A ‘GREY ZONE’?

The system does not explicitly ‘recognise’ a grey zone.

Type
Chapter
Information
The Borderlines of Tort Law
Interactions with Contract Law
, pp. 569 - 616
Publisher: Intersentia
Print publication year: 2019

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  • Switzerland
    • By Pierre Widmer, Emeritus Professor, Swiss Institute of Comparative Law, Lausanne/Berne, Switzerland, Bénédict Winiger, Professor of Law, University of Geneva, Switzerland, Caroline Duret, Doctoral Candidate, Faculty of Law, University of Geneva, Switzerland
  • Edited by Miquel Martin-Casals
  • Book: The Borderlines of Tort Law
  • Online publication: 15 November 2019
  • Chapter DOI: https://doi.org/10.1017/9781780689135.017
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  • Switzerland
    • By Pierre Widmer, Emeritus Professor, Swiss Institute of Comparative Law, Lausanne/Berne, Switzerland, Bénédict Winiger, Professor of Law, University of Geneva, Switzerland, Caroline Duret, Doctoral Candidate, Faculty of Law, University of Geneva, Switzerland
  • Edited by Miquel Martin-Casals
  • Book: The Borderlines of Tort Law
  • Online publication: 15 November 2019
  • Chapter DOI: https://doi.org/10.1017/9781780689135.017
Available formats
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Switzerland
    • By Pierre Widmer, Emeritus Professor, Swiss Institute of Comparative Law, Lausanne/Berne, Switzerland, Bénédict Winiger, Professor of Law, University of Geneva, Switzerland, Caroline Duret, Doctoral Candidate, Faculty of Law, University of Geneva, Switzerland
  • Edited by Miquel Martin-Casals
  • Book: The Borderlines of Tort Law
  • Online publication: 15 November 2019
  • Chapter DOI: https://doi.org/10.1017/9781780689135.017
Available formats
×