In our everyday lives, we enter into large numbers of contracts – often unawares. These contracts affect our private sphere, and we equally shape our business environment with a wide spectrum of contracts. We often agree to contractual provisions that we have never read through or whose consequences we can barely estimate. In practice, the architecture of contractual relationships and general terms and conditions is often very complex and the text of the contract is written in a language that is incomprehensible to the layperson. We use our technical know-how to assist you in drafting your contract, as well as provide advice and work toward negotiating the contract. If a dispute arises in connection with a contractual relationship, we help you to enforce your own claims and to defend claims against third parties, whether out of court or otherwise.
“Contract law” questions
Unless the law expressly prescribes a special form (e.g. written form, public deed), contracts may also be concluded orally (Art. 11 para. 1 SCO). In practice, oral conclusion is therefore sufficient for most contracts. However, the valid conclusion of contract for the sale of immovable property or a corresponding preliminary agreement (e.g. reservation agreement), for example, requires a public deed (Art. 216 SCO).
Individual or all shareholders of a company may agree under a shareholders' agreement on reciprocal rights and obligations, encompassing aspects of the law of obligations and company law. In addition to shareholders, non-shareholders may generally also be parties to such a contract, but not the company limited by shares itself. Accordingly, the shareholders' agreement also does not establish any membership rights and obligations in relation to the company, and the contracting parties may only enter into obligations under the law of obligations or company law between themselves (debt contract, partnership agreement). Typical issues dealt with are, for example, voting arrangements, sales restrictions (e.g. rights of first option, pre-emptive rights, purchase rights), duties of loyalty, non-competition, obligations to make additional financial contributions, succession regulations, etc. The shareholders' agreement as such is not regulated by law and may be concluded without formalities, i.e. in writing or orally.
General terms and conditions (GTCs) summarise the basic contractual provisions of a provider (seller, trader, insurer, etc.). They are pre-formulated contractual clauses, which can be very comprehensive and are rarely negotiable (e.g. general terms and conditions of insurance). In order for GTCs to become a valid constituent element of the contract, the customer/consumer must be able to read them at the latest before the contract is concluded and there must be an acknowledgement that they have been read. The more explicit the customer’s acknowledgment, the greater the probability that a court will regard the general terms and conditions as having been accepted in the event of a dispute. It is normally not enough to refer to existing GTCs merely in the order confirmation. The provider must provide its GTCs to a potential contractual partner prior to the conclusion of the contract or make appropriate reference to them.
As reminders are not regulated by law in Switzerland, there is no provision as to whether and how often a person should be sent a reminder before the initiation of debt collection proceedings. As a general rule, a claim for a sum of money falls due when the consideration is provided. If a payment deadline is granted to the contractual partner, the due date is deferred. Debt enforcement proceedings may be initiated immediately after the debt matures. The law does not require that a number of reminders be sent prior to debt collection proceedings.