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.