Commercial contracts—Switzerland—Q&A guide
Commercial contracts—Switzerland—Q&A guide

The following Commercial practice note provides comprehensive and up to date legal information covering:

  • Commercial contracts—Switzerland—Q&A guide
  • 1. Is there an obligation to use good faith when negotiating a contract?
  • 2. How are ‘battle of the forms’ disputes resolved in your jurisdiction?
  • 3. Is there a legal requirement to draft the contract in the local language?
  • 4. Is it possible to agree a B2B contract online?
  • 5. Are there any statutory or other controls on parties’ freedom to agree terms in contracts between commercial parties in your jurisdiction?
  • 6. Are standard form contracts treated differently?
  • 7. What terms are implied by law into the contract? Is it possible to exclude these in a commercial relationship?
  • 8. Is your jurisdiction a signatory to the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention)?
  • 9. Is there an obligation to use good faith when entering and performing a contract?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to commercial contracts in Switzerland published as part of the Lexology Getting the Deal Through series by Law Business Research (published: June 2020).

Authors: Bratschi AG—Anton Vucurovic; Barbara Jecklin; Thomas Peter

1. Is there an obligation to use good faith when negotiating a contract?

The obligation to act in good faith is a cornerstone of Swiss private law, explicitly stated in article 2 of the Swiss Civil Code. Damage caused as a result of bad-faith negotiation may lead to liabilities of the relevant party based on the principle of culpa in contrahendo.

2. How are ‘battle of the forms’ disputes resolved in your jurisdiction?

There is no recent case law on the resolution of ‘battle of the forms’ disputes in Switzerland. According to the prevailing legal doctrine, the theory that the battle is won by the person who ‘fires the last shot’ is not supported in Switzerland. Rather, according to legal doctrine, a court should analyse both standard forms and apply those rules that are identical in substance. Where the forms provide for differing rules on a specific matter, the court would disregard both of them and apply the non-mandatory rules of the Code of Obligations (CO) instead.

In the rather theoretical case where the dispute would actually concern a fundamental provision of the agreement (such as, for example, the goods to

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