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Contractual Liability and Shared Liability Under the Draft 2020 Code of Obligations: A New Approach?

Author: Franz WERRO et Vincent PERRITAZ

Type: Article

ref: 32018217-250

N0:3 of 2018

Pages: 217-250

A group of law professors specialising in the law of obligations spent several years preparing a draft proposal for the revision of the general provisions of the Swiss Code of Obligations (CO). The proposal was published in 2013, together with a commentary by the authors of the draft. The name by which the draft proposal is referred to—CO 2020—was given to it in the expectation that it would likely be become law that year. In explaining the motivation behind the new draft proposal, the initiators of the project, Claire Huguenin et Reto Hilty, argued that there was a need to liberalise Switzerland’s Code of Obligations and to make it more “euro-compatible”. It is not our intention to discuss here the urgency of such a project at the present time. We would, however, note that Swiss law, as it currently stands, is hardly dirigiste and, at a time of mass consumption, there is arguably a more evident need for a revision of Swiss consumer protection law than for the enactment of legislation to better accommodate the needs of companies. To the extent that European law was taken into consideration—and in keeping with a steadfast, and very Helvetian, reluctance to reinforce consumer protection—the model used was not much that of existing European Union law. Inspiration was drawn instead, in part, from the Principles of European Contract Law, a set of model rules drafted by the non-governmental, Lando Commission of European Contract Law. The largely similar UNIDROIT Principles also served as a reference. The move to revise Code of Obligations can perhaps also be seen as reflecting the authors’ wish to raise Switzerland’s profile in the world of commercial arbitrage. This was also the more or less openly avowed objective that motivated some of Switzerland’s neighbours to revise the law of obligations in their own countries. That, however, is not the subject of the present remarks. Our purpose, rather, is to present an analysis of the rules proposed in the draft CO 2020 as they relate to two specific questions: the liability regime for debtors in breach of contract, and the legal position of creditors in cases where there is joint and several liability.