OBLIGATIONS RESULTING FROM A CONTRACT
LexInter | September 17, 2008 | 0 Comments

OBLIGATIONS RESULTING FROM A CONTRACT

Art. 1

1 The contract is perfect when the parties have, reciprocally and in a concordant manner, expressed their will.

2 This manifestation can be express or implied.

Art. 2

1 If the parties have agreed on all the essential points, the contract is deemed to be concluded, even if secondary points have been reserved.

2 In the absence of agreement on the secondary points, the judge shall rule them taking into account the nature of the case.

3 The provisions governing the form of contracts are reserved.

OFFER AND ACCEPTANCE

Art. 3

1 Anyone who proposes to another the conclusion of a contract by setting a deadline for accepting, is bound by his offer until the expiry of this period.

2 It is released if acceptance does not reach it before the expiration of the time limit.

Art. 4

1 When the offer has been made to a person present, without fixing a time limit for accepting it, the author of the offer is released if the acceptance does not take place immediately.

2 Contracts concluded by telephone are deemed to be made between present, if the parties or their representatives have been in personal communication.

Art. 5

1 When the offer has been made without setting a deadline to a person not present, the author of the offer remains bound until such time as he can expect the arrival of a timely and regular response. .

2 He has the right to admit that the offer was received on time.

3 If the acceptance sent in time reaches the offeror late, and the latter intends not to be bound, he must immediately inform the accepting party.

Art. 6

Where the offeror should not, due either to the special nature of the case or the circumstances, expect express acceptance, the contract is deemed to be concluded if the offer has not been made. refused within a reasonable time.

Art. 6 a

1 Sending something not ordered is not considered an offer.

2 The recipient is not bound to return the item or to keep it.

3 If the shipment of something not ordered is obviously due to an error, the recipient must inform the sender.

Art. 7

1 The author of the offer is not bound if he has made express reservations in this regard, or if his intention not to bind himself arises either from the circumstances or from the special nature of the case.

2 The sending of tariffs, current prices, etc., does not constitute an offer to contract.

3 The fact of exhibiting goods, with indication of the price, is required as a rule for an offer.

REWARD OFFER

Art. 8

1 Anyone who publicly promises a price in exchange for a performance is required to pay it in accordance with his promise.

2 If he withdraws his promise before a service has reached him, he is bound to reimburse, at most up to what he had promised, the expenses made in good faith; unless, however, he proves that the hoped-for success would not have been obtained.

Art. 9

1 The offer is considered null and void if the withdrawal reaches before the offer or at the same time to the addressee, or if, having arrived later, it is communicated to the addressee before the latter has taken cognizance of the offer. .

2 The same rule applies to the withdrawal of acceptance.

V ° FORMATION OF REMOTE CONTRACTS

CONTRACTS BETWEEN ABSENTS

Art. 10

1 The contract concluded between absent persons takes effect from the moment the acceptance has been sent.

2 If an express acceptance is not necessary, the effects of the contract go back to the moment of receipt of the offer.

FORM OF THE CONTRACT

Art. 11

1 The validity of contracts is subject to observance of a particular form only by virtue of a special prescription of the law.

2 In the absence of a contrary provision on the scope and effects of the prescribed form, the contract is only valid if this form has been observed.

Art. 12

When the law requires that a contract be made in written form, this rule also applies to all modifications of the contract, except for additional and ancillary stipulations which are not in contradiction with the act.

Art. 13

1 The contract for which the law requires the written form must be signed by all the persons to whom it imposes obligations.

V ° SIGNATURE

Art. 14

1 The signature must be handwritten by the obligator.

2 That which proceeds from some mechanical means is considered sufficient only in cases where it is permitted by custom, in particular when it comes to signing securities issued in considerable numbers.

2bis A qualified electronic signature , based on a qualified certificate from a recognized certification service provider within the meaning of the law of 19 December 2003 on electronic signatures 4 is assimilated to a handwritten signature. The legal or contractual provisions to the contrary are reserved. 5

3 The signature of the blind only binds them if it has been duly legalized, or if it is established that they knew the text of the act at the time of signing.

Art. 15

Anyone who cannot sign is allowed to replace their signature with a hand-made mark, duly legalized, or with an authentic certificate; the provisions concerning the bill of exchange are reserved.

Art. 16

1 The parties who have agreed to give a special form to a contract for which the law does not require it, are deemed not to have intended to be bound until the completion of this form.

2 In the case of the written form, without more precise indication, the provisions relating to this form should be observed when required by law.

V ° CAUSE

CAUSE OF OBLIGATION

Art. 17

The acknowledgment of a debt is valid, even if it does not state the cause of the obligation.

V ° INTERPRETATION OF CONTRACTS

INTERPRETATION OF CONTRACTS – SIMULATION

Art. 18

1 To assess the form and clauses of a contract, it is necessary to seek the real and common intention of the parties, without stopping at the inaccurate expressions or names which they may have used, either by mistake or to disguise the true nature of the agreement.

 2 The debtor may not set up the simulation exception against a third party who has become a creditor on the basis of a written acknowledgment of the debt.

V ° SUBJECT

Art. 19

1 The subject of a contract can be determined freely, within the limits of the law.

2 The law excludes the conventions of the parties only when it enacts a strict rule of law, or when a derogation from its text would be contrary to morals, public order or the rights attached to personality.

V ° SUBJECT

Art. 20

1 The contract is null if it has for object something impossible, illegal or contrary to morals.

2 If the contract is vitiated only in some of its clauses, these clauses alone are null and void, unless there is reason to admit that the contract would not have been concluded without them.

V ° LESION

Art. 21

1 In the event of an obvious disproportion between the service promised by one of the parties and the consideration of the other, the injured party may, within one year, declare that it is terminating the contract and repeat what ‘she paid, if the injury was determined by the exploitation of her discomfort, her lightness or her inexperience.

2 The period of one year starts from the conclusion of the contract.

Art. 22

1 The obligation to enter into a future agreement can be assumed contractually.

2 When, in the interests of the parties, the law makes the validity of the contract subject to observance of a certain form, this also applies to the promise to contract.

DEFECTS OF CONSENT

DEFECTS OF CONSENT

V ° ERROR

Art. 23

The contract does not bind that of the parties who, at the time of concluding it, was in an essential error.

Art. 24

1 The error is essential, in particular:

1. when the party who avails himself of his error intended to enter into a contract other than the one to which he declared himself consenting;

2. when it had in mind something other than that which was the object of the contract, or another person and it was engaged mainly in consideration of that person;

3. when the service promised by the contracting party who avails himself of his error is notably more extensive, or when the consideration is notably less than he actually wanted;

4. when the error relates to facts which commercial loyalty allowed the party relying on his error to consider as necessary elements of the contract.

2 The error which concerns only the reasons for the contract is not essential.

3 Simple calculation errors do not invalidate the contract; they need to be corrected.

Art. 25

1 The party which is the victim of an error cannot rely on it in a manner contrary to the rules of good faith.

2 It remains particularly bound by the contract it intended to make, if the other party declares itself ready to perform it.

Art. 26

1 The party who invokes his error to avoid the effect of the contract is bound to compensate the damage resulting from the invalidity of the agreement if the error arises from his own fault, unless the other party has known or should have known the error.

2 The judge may, if equity so requires, award greater damages to the injured party.

Art. 27

The rules concerning error apply by analogy, when the will of one of the parties has been incorrectly conveyed by a messenger or some other intermediary.

V ° DOL

Art. 28

1 The party induced to contract by the fraud of the other is not obliged, even if his error is not essential.

2 The party who is the victim of fraud by a third party remains liable, unless the other party knew or should have known of the fraud when the contract was concluded.

V ° VIOLENCE

FEAR

Art. 29

1 If one of the parties has contracted under the influence of a well- founded fear which the other party or a third party would have inspired in it without right, it is not bound.

2 When threats are made by a third party and the other party has neither known nor should have known, the contracting party who is the victim and who wishes to withdraw from the contract is required to indemnify the other if fairness demands it.

Art. 30

1 The fear is deemed to be justified when the threatened party believed, according to the circumstances, that a serious and imminent danger threatened him or one of his relatives, in his life, his person, his honor or His belongings.

2 The fear of having a right invoked can only be taken into account if the embarrassment of the threatened party has been exploited to extort excessive advantages from the latter.

Art. 31

1 A contract vitiated by error or fraud, or concluded under the empire of a well-founded fear, is held to be ratified when the part which it does not bind has allowed one year to pass without declaring the other her resolution not to maintain it, or without repeating what she paid for.

2 The time limit begins as soon as the error or fraud has been discovered, or as soon as the fear has dissipated.

3 The ratification of a contract vitiated by fraud or concluded under the influence of a well-founded fear does not necessarily imply the waiver of the right to claim damages.

REPRESENTATION

Art. 32

1 The rights and obligations deriving from a contract made in the name of another person by an authorized representative pass to the principal.

2 When at the time of the conclusion of the contract the representative has not made himself known as such, the principal only becomes a creditor or debtor directly if the party with whom he is contracting should infer from the circumstances that there was a relationship of representation, or whether it was indifferent to him to deal with one or the other.

3 In other cases, an assignment of the debt or a assumption of the debt is necessary in accordance with the principles which govern these acts.

Art. 33

1 The power to perform legal acts for others, insofar as it is based on public law relationships, is regulated by the public law of the Confederation or the cantons.

2 When the powers derive from a legal act, its extent is determined by that act itself.

3 If the powers have been brought to the attention of a third party by the principal, their scope is determined with regard to the latter by the terms of the communication made to him.

Art. 34

1 The principal has the right at any time to restrict or revoke the powers arising from a legal act, without prejudice to any claims that the representative may have to bring against him by virtue of another cause, such as an individual contract. of employment, a company contract or a mandate. 6

2 Any early waiver of this right by the principal is void.

3 When the principal has made known, either in express terms or by his acts, the powers that he has conferred, he may only oppose the total or partial revocation to third parties in good faith if he has also made known this revocation.

Art. 35

1 The powers arising from a legal act are extinguished by death, declaration of absence, loss of the exercise of civil rights and bankruptcy of the principal or agent, unless otherwise agreed. or does not result from the nature of the case.

2 The same applies when a legal person ceases to exist, or when a company registered in the trade register is dissolved.

3 The personal rights of the parties towards each other remain reserved.

Art. 36

1 The representative pledged with a document certifying his powers is required, when they have expired, to return it or to file it in court.

2 If the principal or his legal successors neglect to compel the representative to do so, they are liable for the damage which may result from it vis-à-vis third parties acting in good faith.

Art. 37

1 As long as the representative is not aware of the extinction of his powers, the principal or his successors in title become creditors or debtors as if the powers still existed.

2 Exceptions are the cases in which third parties became aware that the powers had ended.

Art. 38

1 When a person contracts without powers on behalf of a third party, the latter only becomes a creditor or debtor if he ratifies the contract.

2 The other party has the right to demand that the principal declare, within a suitable period, whether or not he ratifies the contract; it ceases to be bound for lack of ratification within this period.

Art. 39

1 If ratification is expressly or tacitly refused, the person who has taken on the capacity of representative may be brought for compensation for the damage resulting from the invalidity of the contract, unless he proves that the other party knew or should have known lack of powers.

2 If the representative is at fault, the judge may, if equity so requires, order him to pay more substantial damages.

3 The action based on illegitimate enrichment subsists in all cases.

Art. 40

Special provisions on the powers of representatives and bodies of companies, as well as authorized representatives and other commercial representatives are reserved.

Art. 40 to 7

1 The following provisions are applicable to contracts relating to movable property or services intended for the personal or family use of the customer if:

at. the supplier of the goods or services has acted in the course of a professional or commercial activity and that

b. the service provided by the purchaser exceeds 100 francs.

2 These provisions are not applicable to insurance contracts. the Federal Council accordingly adapts the amount indicated in para. 1,

let. b.

Art. 40 b 8

The buyer can revoke his offer or his acceptance if he has been invited to make a commitment:

at. 9 at his place of work, in living quarters or in their immediate surroundings;

b. in public transport or on public roads;

vs. during an advertising event linked to an excursion or a similar occasion.

Art. 40 c

The purchaser cannot invoke his right of revocation:

at. whether he specifically requested negotiations;

b. if he made his declaration at a market or fair stand.

Art. 40 d

1 The supplier must, in writing, inform the purchaser of his right of revocation, the form and the time limit to be observed in order to exercise it, and communicate his address to him.

2 This information must be dated and allow the contract to be identified.

3 They must be provided to the purchaser so that he is aware of them when he offers or accepts the contract.

Art. 40 th

1 The purchaser communicates his revocation in writing to the supplier. 2 The revocation period is seven days and begins to run as soon as the purchaser:

at. offered or accepted the contract and

b. has been made aware of the information provided for in art. 40 d .

3 The proof of when the purchaser had knowledge of the information under Art. 40 is the responsibility of the supplier.

4 The deadline is met if the notice of revocation is mailed on the seventh day.

Art. 40 f

1 If the purchaser has revoked the contract, the parties must reimburse the services received.

2 If the purchaser has made use of the thing, he owes the supplier an appropriate rent.

3 The purchaser must reimburse the advances and costs made by the person who provided him with a service, in accordance with the provisions governing the mandate (art. 402).

4 The purchaser owes no further compensation to the supplier.

Art. 40 g 14

 

0pt; font-family: TimesNewRoman “> If the purchaser has made use of the thing, he owes the supplier an appropriate rent.

3 The purchaser must reimburse the advances and costs made by the person who provided him with a service, in accordance with the provisions governing the mandate (art. 402).

4 The purchaser owes no further compensation to the supplier.

Art. 40 g 14

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