Frequently asked questions (FAQ)

1. When can I contest a contract?

A contract can only be contested if it is defective in some way. The following defects in particular can affect a contract:

Article 21 of the Swiss Code of Obligations (CO) regulates the case of unfair advantage. Where there is a clear discrepancy between performance and consideration in a contract that has been concluded through one party's exploitation of the other's position of need, inexperience or thoughtlessness, the party who is at a disadvantage may declare within one year that they will not honour the contract and may demand restitution of any performance already made.

Articles 23 and 24 CO regulate the case of contracts concluded in error. They provide that a party who makes a serious mistake as to the circumstances when entering into a contract is not bound by that contract. The error must be substantial, i.e. so serious that if the party in error had known the true situation, they would not have signed the contract. It is advisable to inform the other party in writing that the signed contract is considered invalid on the grounds of a substantial error. If a party has been induced to enter into a contract by a fraudulent misrepresentation made by the other party, the contract does not bind the deceived party (Art. 28 CO). Fraudulent misrepresentation arises where a party to a contract lies about or fails to disclose a certain fact, such as falsely claiming that goods are of a certain quality. It is advisable to inform the other party in writing that the contract is considered void on the grounds of fraudulent misrepresentation.

It should also be noted that exercising a right of withdrawal does not prevent someone from renegotiating the contract. For further information on this subject, see the FAQs.

2. Is there a general right of withdrawal?

Where two parties have concluded a contract, both are basically bound to comply with its terms. A right of withdrawal only exists for certain types of contracts, such as:

- door-to-door sales (Art. 40a ff. Code of Obligations (CO))

- consumer credit transactions (Art. 16 Consumer Credit Act (FACC))

- agency agreements (Art. 404 CO)

- marriage or partnership brokerage agreements (Art. 406e CO)

The seller may, however, have defined general terms and conditions providing for a general right of withdrawal. It is important, therefore, to read the seller's terms and conditions in order to establish whether there is a right of withdrawal and when it can be used.
 

3. Can minors enter into a contract?

Persons who have not yet reached the age of 18 are considered minors. According to Article 19 of the Swiss Civil Code, legal transactions arranged by minors who have the capacity to consent are regarded as voidable if they are not entered into with the consent of one of the minor's legal representatives (who are usually the parents).

The legal representative's consent can be given before, during or after the transaction. The principle of good faith (Art. 2 Swiss Civil Code) is decisive in establishing whether a parent has consented to the action of a child. It is debatable whether parents who allow their children unrestricted internet access are thereby giving their general consent to legal transactions. It is generally assumed that parents still have to consent to each individual contract.

If parents do not consent to their child's action, they must inform the contracting party right away.

A child has a broader capacity to act within the limits of the assets that they are entitled to as a child (such as pocket money or income from a part-time job).

Minors who do not have the capacity to consent may not enter into contracts. Capacity to consent is defined in Article 16 of the Swiss Civil Code.

4. What can I do if I fall victim to an internet scam?

Ostensibly free offers have prompted the State Secretariat for Economic Affairs (SECO) to publish the brochure "Vorsicht vor Internetschwindlereien!" (‘Beware of Internet Scams!'), which offers practical advice on this subject.

The important points are as follows:

Anyone who is induced by error into entering into a contract through a website can contest the contract within a year of discovering the mistake by informing the other party in writing (by registered letter) that they regard the contract as invalid on the grounds of deception. Under both Swiss and German law, the declaration that the contract is being contested makes the contract null and void (Art. 23 ff. Code of Obligations (CO)).

If a debt collection agency or any other agent for the counterparty insists on the settlement of a dubious claim, the deceived party should also advise the counterparty's agent that the contract is invalid.

Only a civil court can decide whether the contract is invalid or not, after considering all the relevant circumstances in an action raised by the party claiming the contract's validity.

On the subject of fraudulent activities in general, SECO and the Federal Consumer Affairs Bureau have jointly issued the brochure "Zu schön, um wahr zu sein! Wie erkennen Sie eine Konsumentenfalle?" (‘Is it too good to be true? How to recognise a scam').

5. What should I do if I receive unsolicited goods?

Under Article 6a of the Swiss Code of Obligations (CO), sending unsolicited goods does not constitute an offer to enter into a contract. The recipient is not obliged to return or keep such goods. Where unsolicited goods have obviously been sent in error, the recipient must inform the sender.

6. Can an online-shop change prices once an order has been made?

Article 7 paragraph 3 of the Swiss Code of Obligations (CO) states that displaying merchandise with an indication of its price generally constitutes an offer. This means that if the buyer accepts the offer, they have the right to receive the purchased merchandise on the terms on which it was offered. Article 7 paragraph 3 CO was drawn up with traditional trading in mind. Its application to online shopping is open to interpretation and has not yet been ruled on by the courts.

Some legal experts are of the view that in the field of online shopping, indicating a price does not constitute an offer that is binding on the seller in accordance with Article 7 paragraph 3 CO, but is instead an invitation to the buyer to make an offer. According to this interpretation, it is the buyer who makes an offer to the seller, which only becomes binding once the seller has accepted it. It should be noted that the Swiss Association for Standardisation also bases its standards on electronic trading on this understanding of the offer and acceptance mechanism.

However, the way in which the seller in each case defines its business relationship with the buyer remains the decisive factor. The nature of the business relationship is determined above all by the way in which the information is presented or worded on the website and the seller's general terms and conditions.

7. When do general terms and conditions become part of the contract or when are they valid?

General terms and conditions typically consist of pre-formulated contractual provisions applicable to a large number of contracts that are presented by the seller for acceptance by the buyer when the contract is being concluded. For these terms to become part of the contract and therefore to take legal effect, the following requirements must be met:

First, the seller must inform the buyer that the general terms and conditions will become part of the contract.

Secondly, the buyer must be given a reasonable opportunity to study the terms and conditions. There is no legal requirement, however, that the buyer must actually do this.

It is essential, however, that the buyer accepts the general terms and conditions when signing a contract.

Provisions of general terms and conditions which would not be expected by a buyer acting in good faith do not become part of the contract. Thanks to this rule on unusual provisions, anyone who accepts general terms and conditions without really reading them is protected against unexpected clauses.

It should be noted in this context that Article 8 of the Federal Act on Unfair Competition regulates the use of unfair general terms and conditions.

8. What can I do if I fall victim to an aggressive selling method?

In the case of door-to-door sales and similar contracts, articles 40a ff. of the Swiss Code of Obligations (CO) on the right of withdrawal apply. Legally speaking, door-to-door sales include any offers made at the customer's workplace, in and around their homes, on public transport or in the streets or in other public places. The right of withdrawal also applies to sales concluded during a promotional event held in connection with an excursion or a similar event. It also applies to commitments undertaken by telephone or other similar means of instant voice communication. However, sales concluded at a market stall or trade fair do not constitute a door-to-door sale. To be considered a door-to-door sale under article 40a CO, the amount paid by the customer must exceed CHF 100. These rules do not apply to insurance contracts.

The seller must inform the buyer in writing of the right of withdrawal and of the form and time limit to be observed when exercising this right, and must provide the buyer with its address.

If a buyer wishes to withdraw from the contract, they must give the seller written notice of withdrawal. The time limit for withdrawal is fourteen days, which begins as soon as the buyer has requested or agreed to the contract and has been made aware of the right of withdrawal by the seller.

Article 3 of the Federal Act on Unfair Competition (UCA) prohibits the use of unfair and aggressive advertising or selling methods which influence the customer's freedom of choice.

In the event of an infringement of these regulations, civil action can be taken under article 9 ff. UCA or a criminal complaint can be filed in accordance with article 23 UCA.

Consumers should be aware that oral consent may be sufficient to make a binding contract.

9. What can I do if a contractual partner fails to provide the expected services?

According to Article 102 of the Swiss Code of Obligations (CO), where an obligation is due for performance, the debtor is in default as soon as they receive a formal reminder from the creditor. A reminder is not required where a time limit for performance of the obligation has been set in the contract. Once a reminder is sent, the debtor must be given an appropriate time limit within which to fulfil their obligation. If the debtor defaults again at this time, the creditor has the right to withdraw from the contract (Art. 107 para. 2 CO). They must notify the debtor of this without delay.

10. What rights do I have as a buyer if the goods I buy are faulty?

Under article 197 ss. of the Swiss Code of Obligations (CO), goods that do not exhibit the promised or expected quality are considered defective.

The seller, and not the manufacturer, is liable for defects according to article 197 ss. CO. In order to claim your statutory rights, it is essential that you notify the seller of the defects (this is best done in writing). The complaint should be made without delay. Where there is a defect, the law offers a buyer several options: you can cancel the purchase (art. 205 CO), demand a reduction in the price (art. 205 CO) or ask for the goods to be replaced (art. 206 CO).

However, these legal provisions are non-binding. The seller can change the rights conferred on the buyer by law by making the transaction subject to different general terms and conditions. Where the general terms and conditions clearly state that there is only a right to have the goods repaired, the buyer cannot claim any further rights. For problems in connection with repairs, please refer to the FAQ on the subject.

Before each purchase, the buyer should find out if there are general terms and conditions that apply and carefully check what they say. If there are general terms and conditions, the rights contained in them apply. If there are no general terms and conditions, the law (art. 197 ss. CO) determines which rights apply.

The delay for warranty claims is two years since delivery of the goods to the buyer (art. 210 CO). In cases of delivery to consumers (people, who buy for personal or family purposes), the seller (the one who acts professionally or commercially) cannot shorten this delay if it concerns new goods. However, it can be shortened to a minimum of one year if second-hand goods are sold. If the seller totally excludes the warranty he exposes himself to the risk of non-conformity to art. 8 Law against unfair business practices.

11. What do I do if I have problems regarding repairs under warranty?

• The seller refuses to cover the cost of the repair on the grounds that the damage is not covered by the warranty:

Refusal is possible under the following conditions:

The cases in which the warranty does not apply must be clearly defined in the general terms and conditions.

If the seller argues on the grounds of inappropriate use or fault on the part of user, it must substantiate this claim by means of a technical report.

It is the responsibility of the buyer to prove that there is a defect. If the seller claims inappropriate use or fault on the part of the user, the buyer must prove the contrary. In order to do this it may be necessary to obtain an expert assessment of the article in question.

• The seller delays the repair:

Two situations must be distinguished:

The general terms and conditions only provide for a right to have the goods repaired.

Where no limitation period for repairs is stated, the buyer must first ask the seller to repair the goods (a phone call is sufficient) before setting a reasonable time limit for the repair. If the seller does not act within this time limit, the buyer can give notice to the seller that the contract is cancelled, i.e. by returning the purchased goods and demanding a refund of the purchase price.

The general terms and conditions provide for a right to have the goods repaired and certain statutory rights.

Other statutory rights apply if the repair is not carried out within reasonable period.

• The repair by the seller is unsuccessful:

If the seller is unable to repair the goods within a certain time limit because the repair proves impossible or unsuccessful, the buyer can give notice to the seller that the contract is cancelled, i.e. by returning the purchased goods and demanding a refund of the purchase price.

• Replacements:

Under the law, the buyer has no right to a replacement while the purchased goods are being repaired. It is possible, however, that the seller's general terms and conditions may provide for such a right.

• New defects become apparent after the repair:

To avoid problems with the seller, the buyer must take the following measures:

When handing over the article for repair, they should make sure to obtain a receipt detailing the defects and any accessories supplied with the article.

When collecting the repaired article, the buyer should check the condition of the returned article in the presence of the seller.
 

12. Is it possible to claim damages from the manufacturer if an article is defective?

According to Article 1 of the Federal Act on Product Liability (PLA), the manufacturer is liable in damages if a defective product:

a. kills or injures a person;

b. damages or destroys other property normally intended for private use or consumption and which the person concerned has been using for private purposes.

According to Article 2 PLA, the term "manufacturer" includes not only the actual manufacturer but also anyone presenting themselves as the manufacturer, as well as the importer or distributor of the product in question.

The buyer is not required to prove the cause of the defect. It is sufficient to demonstrate that the product falls short of the safety standards that the average customer can reasonably expect.

The buyer's excess in case of damage to property is CHF 900 (Art. 6 PLA).

In order to claim damages, the buyer must comply with the legal prescriptive and forfeiture periods of 3 or 10 years respectively.

13. How long do gift tokens and other vouchers remain valid?

There is no specific statutory provision on how long a gift token remains valid. The general rules of contract law therefore apply.

Subject to the statutory limits, the parties can decide how long a gift token remains valid at the time of purchase. If the issuer proposes a time limit, it is not valid unless the buyer accepts it. The following legal limits must be considered if the parties themselves decide how long the gift token remains valid:

If the time limit is stipulated in the issuer’s general terms and conditions, under Article 8 of the Unfair Competition Act, this limit must not disadvantage the buyer in a considerable and unjustified manner. If the period is too short, the time limit will probably not be valid.

Some legal experts are of the opinion that the limits on the validity of gift tokens are equal to the statutory limitation periods for other contractual rights; a court in Solothurn upheld this view in a decision taken on 28 May 2020. This means that a gift token is valid for at least five years if it can be used to buy consumer goods and for ten years in all other cases. These statutory limitation periods cannot be reduced.

The issuer is not obliged to accept a gift token after it has expired. But they may choose to do so as a courtesy.

When buying a gift token, you should check how long it remains valid and, if need be, agree an extended period of validity.

Problems can arise where a business changes ownership or closes down. In this case, the following rules apply:

If the new owners have not only taken over the business but also the previous owner's debts, they are obliged to accept the gift token.

If the new owners have not taken over existing debts or if the business has closed for good, the previous owners remain the debtor in relation to the gift token. The customer will therefore have to contact the previous owners of the business, and this often proves difficult in practice.

14. Does a call to a 0800 number lead to costs for the caller?

Conditions for use of 0800 numbers are regulated by the Ordinance on Addressing Resources in the Field of Telecommunications. In accordance with art. 24e al. 2 of the Ordinance, calls to national 0800 and international 00800 numbers should be free for the caller. However, this provision foresees that costs can be charged for the use of a connection by callers without a subscription contract; e.g. for calls from public payphones or from mobiles with prepaid phone cards.

If fees related to calls towards 0800 numbers are charged, the operator must, in accordance with the Ordinance on Price Indications, indicate the rate supplements so that they are easy to access in a clearly legible form.

15. In what language(s) do operating instructions and warnings have to be written in?

Unless specific provisions have been set by legislation similar to that of the law on product safety, it is article 8 of the Ordinance on Product Safety (OSPro) that determines in which language(s) operating instructions and warnings must be written in.

According to art. 8 al. 1 OSPro instructions for use and maintenance as well as information brochures have to be written in the official language of Switzerland of the part of the country where it is expected that the product will be used.

According to art. 8 al. 2 OSPro, warnings and precautions for use, when provided in text form (not as symbols), have to be written in all official languages of Switzerland.

Specific provisions are applicable in particular to the following products: foodstuffs, toys, cosmetics, contact lenses, medications, chemical products. (For more information please see this FAQ in one of the other languages available).
 

16. Ordering goods from abroad: what costs must I expect?

Before ordering goods from abroad, you should be aware of the following costs that may be added to the purchase price :

Transport costs

You should check whether the transport costs are paid by the seller or the buyer. The transport costs may also vary depending on the carrier (post or private carrier); before ordering goods online, it is therefore important to know who the carrier is and what the transport costs will be.

Customs duties

Deliveries from abroad have to be declared to customs. In the case of deliveries by post or by express courier, the carrier takes care of customs clearance. The carrier will make a charge to cover customs duties that varies depending on the service provided. Before ordering goods online, it is therefore important to know who the carrier is and what charges it makes for customs clearance. The Price Supervisor has reached an agreement on customs charges with SwissPost and with various private carriers (https://www.preisueberwacher.admin.ch/pue/fr/home/themes/ilot-de-cherte---politique-de-prix/frais-de-dedouanement.html (not in English)).

Customs duties and value added tax

Based on the customs declaration, the customs authorities calculate the import taxes, i.e. the customs duty and the value added tax (VAT).

Customs duty is calculated on the basis of specific factors, normally the gross weight. Normally customs duty amounts to no more than CHF 1.00 per kilogram. Depending on the goods ordered, additional higher taxes may be charged (e.g.. beer tax or monopoly taxes on alcoholic beverages, tobacco tax, etc.).

The standard rate of VAT is 7.7 %. Certain common consumer goods (e.g. food or books) are subject to a reduced rate of 2.5 %.

Customs duty is not charged when it amounts to less than CHF 5.00 per customs declaration. However, the following rules on levying VAT apply: if the mail-order company from which the goods are ordered has a turnover of at least CHF 100'000.00 per year from consignments delivered from abroad, it must be registered for VAT. VAT must therefore be paid on small consignments and other consignments to Switzerland which incur VAT of more than CHF 5.00. If, on the other hand, the mail-order company has an annual turnover of less than CHF 100'000.00, it does not have to be registered for VAT and VAT is not payable on small consignments. Goods subject to a VAT rate of 7.7 % with a maximum value of CHF 65.00 and goods subject to a VAT rate of 2.5 % with a maximum value of CHF 200.00 (including transport costs) may be imported VAT-free.

Other possible costs

The import, export or transit of certain goods may be prohibited, restricted or only permitted if authorisation has been obtained. A failure to meet these requirements may lead to additional costs.

For more information on online shopping and on importing goods into Switzerland, see the following links to the website of the Federal Customs Administration :

https://www.ezv.admin.ch/ezv/en/home/information-individuals/online-shopping--mail-and-courier-consignments.html

https://www.ezv.admin.ch/ezv/en/home/information-individuals/online-shopping--mail-and-courier-consignments/importation-into-switzerland.html  

17. Can debt collection agencies charge debtors debt collection fees (losses due to default)?

Cases in which debt collection fees have been contractually agreed

In principle, binding provision can be made in a contract for debt collection fees to be paid and their amount can also be fixed. If fees are stipulated in a company’s general terms and conditions of business, Article 8 of the Unfair Competition Act and the “rule on unusual provisions” must be observed (see FAQ 7). If fees are excessively high, the court may order them to be reduced in accordance with Article 163 paragraph 3 of the Swiss Code of Obligations (CO).

Cases in which debt collection fees have not been contractually agreed

There is no clear case law as yet on the issue of whether and under what circumstances a creditor or debt collection agency as its representative can demand that a debtor pay the agency’s costs (fees, expenses etc.), although this appears to have a basis in Article 106 CO. According to legal experts and the available case law, the following principles apply:

- In the case of financial debts, losses due to default need only be reimbursed to the extent that the costs exceed the statutory or contractual default interest. If the reimbursement of losses due to default is stipulated, it is not simply added to the default interest.

- The creditor must provide documentary proof to substantiate a claim for losses due to default.

- The cost of an initial reminder cannot be claimed back, unless this is stipulated in a contract or in a law, such as Article 20 paragraph 1 of the Insurance Contracts Act and Article 34a paragraph 2 of the Ordinance on Old Age and Survivors‘ Insurance. The costs incurred by the debtor in their own efforts to collect the debt cannot normally be reclaimed. However, losses due to default may include the cost of instructing a debt collection agency. It must however be necessary in the case concerned that an agency is involved.

- Article 27 paragraph 3 of the Federal Act on Debt Enforcement and Bankruptcy does not exclude the possibility of making contractual provision for passing on the costs of a debt collection agency to the debtor, provided they relate to the process of issuing reminders and ultimatums. The guiding principle underlying the legislation – that it should be normally possible to collect debts without having to involve a professional agency – can however be applied to the process of issuing reminders and ultimatums and taken into account in deciding whether it was reasonable to involve a debt collection agency.

 

Last modification 01.12.2020