Obligations in Tort : Swiss Civil Code

Art. 41

A. Gen­er­al prin­ciples

I. Con­di­tions of li­ab­il­ity

1 Any per­son who un­law­fully causes loss or dam­age to an­oth­er, wheth­er wil­fully or neg­li­gently, is ob­liged to provide com­pens­a­tion.

2 A per­son who wil­fully causes loss or dam­age to an­oth­er in an im­mor­al man­ner is like­wise ob­liged to provide com­pens­a­tion.

Art. 42

II. De­term­in­ing the loss or dam­age

1 A per­son claim­ing dam­ages must prove that loss or dam­age oc­curred.

2 Where the ex­act value of the loss or dam­age can­not be quan­ti­fied, the court shall es­tim­ate the value at its dis­cre­tion in the light of the nor­mal course of events and the steps taken by the in­jured party.

3 The costs of treat­ing an­im­als kept as pets rather than for in­vest­ment or com­mer­cial pur­poses may be claimed with­in ap­pro­pri­ate lim­its as a loss even if they ex­ceed the value of the an­im­al.

Art. 43

III. De­term­in­ing com­pens­a­tion

1 The court de­term­ines the form and ex­tent of the com­pens­a­tion provided for loss or dam­age in­curred, with due re­gard to the cir­cum­stances and the de­gree of culp­ab­il­ity.

1bis Where an an­im­al kept as a pet rather than for in­vest­ment or com­mer­cial pur­poses has been in­jured or killed, the court may take ap­pro­pri­ate ac­count of its sen­ti­ment­al value to its own­er or his de­pend­ants.

2 Where dam­ages are awar­ded in the form of peri­od­ic pay­ments, the debt­or must at the same time post se­cur­ity.

Art. 44

IV. Grounds for re­du­cing com­pens­a­tion

1 Where the in­jured party con­sen­ted to the ac­tion which caused the loss or dam­age or cir­cum­stances at­trib­ut­able to him helped give rise to or com­pound the loss or dam­age or oth­er­wise ex­acer­bated the po­s­i­tion of the party li­able for it, the court may re­duce the com­pens­a­tion due or even dis­pense with it en­tirely.

2The court may also re­duce the com­pens­a­tion award in cases in which the loss or dam­age was caused neither wil­fully nor by gross neg­li­gence and where pay­ment of such com­pens­a­tion would leave the li­able party in fin­an­cial hard­ship.

Art. 45

V. Spe­cial cases

1. Hom­icide and per­son­al in­jury

a. Dam­ages for hom­icide

1 In the event of hom­icide, com­pens­a­tion must cov­er all ex­penses arising and in par­tic­u­lar the fu­ner­al costs.

2 Where death did not oc­cur im­me­di­ately, the com­pens­a­tion must also in­clude the costs of med­ic­al treat­ment and losses arising from in­ab­il­ity to work.

3Where oth­ers are de­prived of their means of sup­port as a res­ult of hom­icide, they must also be com­pensated for that loss.

Art. 46
b. Dam­ages for per­son­al in­jury

1In the event of per­son­al in­jury, the vic­tim is en­titled to re­im­burse­ment of ex­penses in­curred and to com­pens­a­tion for any total or par­tial in­ab­il­ity to work and for any loss of fu­ture earn­ings.

2 Where the con­sequences of the per­son­al in­jury can­not be as­sessed with suf­fi­cient cer­tainty at the time the award is made, the court may re­serve the right to amend the award with­in two years of the date on which it was made.

Art. 47
c. Sat­is­fac­tion

In cases of hom­icide or per­son­al in­jury, the court may award the vic­tim of per­son­al in­jury or the de­pend­ants of the de­ceased an ap­pro­pri­ate sum by way of sat­is­fac­tion.

Art. 48
2. …

Art. 49
3. In­jury to per­son­al­ity rights

1 Any per­son whose per­son­al­ity rights are un­law­fully in­fringed is en­titled to a sum of money by way of sat­is­fac­tion provided this is jus­ti­fied by the ser­i­ous­ness of the in­fringe­ment and no oth­er amends have been made.

2The court may or­der that sat­is­fac­tion be provided in an­oth­er man­ner in­stead of or in ad­di­tion to mon­et­ary com­pens­a­tion.

Art. 50

VI. Mul­tiple li­able parties

1. In tort

1 Where two or more per­sons have to­geth­er caused dam­age, wheth­er as in­stig­at­or, per­pet­rat­or or ac­com­plice, they are jointly and sev­er­ally li­able to the in­jured party.

2The court de­term­ines at its dis­cre­tion wheth­er and to what ex­tent they have right of re­course against each oth­er.

3 Abet­tors are li­able in dam­ages only to the ex­tent that they re­ceived a share in the gains or caused loss or dam­age due to their in­volve­ment.

Art. 51

2. On dif­fer­ent leg­al grounds

1 Where two or more per­sons are li­able for the same loss or dam­age on dif­fer­ent leg­al grounds, wheth­er un­der tort law, con­tract law or by stat­ute, the pro­vi­sion gov­ern­ing re­course among per­sons who have jointly caused dam­age is ap­plic­able mu­tatis mutandis.

2 As a rule, com­pens­a­tion is provided first by those who are li­able in tort and last by those who are deemed li­able by stat­utory pro­vi­sion without be­ing at fault or in breach of con­trac­tu­al ob­lig­a­tion.

Art. 52

VII. Self-de­fence, ne­ces­sity, le­git­im­ate use of force

1 Where a per­son has ac­ted in self-de­fence, he is not li­able to pay com­pens­a­tion for loss or dam­age caused to the per­son or prop­erty of the ag­gressor.

2 A per­son who dam­ages the prop­erty of an­oth­er in or­der to pro­tect him­self or an­oth­er per­son against im­min­ent dam­age or danger must pay dam­ages at the court’s dis­cre­tion.

3 A per­son who uses force to pro­tect his rights is not li­able in dam­ages if in the cir­cum­stances the as­sist­ance of the au­thor­it­ies could not have been ob­tained in good time and such use of force was the only means of pre­vent­ing the loss of his rights or a sig­ni­fic­ant impair­ment of his abil­ity to ex­er­cise them.

Art. 53

VIII. Re­la­tion­ship with crim­in­al law

1 When de­term­in­ing fault or lack of fault and ca­pa­city or in­ca­pa­city to con­sent, the court is not bound by the pro­vi­sions gov­ern­ing crim­in­al ca­pa­city nor by any ac­quit­tal in the crim­in­al court.

2 The civil court is like­wise not bound by the ver­dict in the crim­in­al court when de­term­in­ing fault and as­sess­ing com­pens­a­tion.

Art. 54
B. Li­ab­il­ity of per­sons lack­ing ca­pa­city to con­sent

1 On grounds of equity, the court may also or­der a per­son who lacks ca­pa­city to con­sent to provide total or par­tial com­pens­a­tion for the loss or dam­age he has caused.

2 A per­son who has tem­por­ar­ily lost his ca­pa­city to con­sent is li­able for any loss or dam­age caused when in that state un­less he can prove that said state arose through no fault of his own.

Art. 55

C. Li­ab­il­ity of em­ploy­ers

1 An em­ploy­er is li­able for the loss or dam­age caused by his em­ploy­ees or an­cil­lary staff in the per­form­ance of their work un­less he proves that he took all due care to avoid a loss or dam­age of this type or that the loss or dam­age would have oc­curred even if all due care had been taken.1

2 The em­ploy­er has a right of re­course against the per­son who caused the loss or dam­age to the ex­tent that such per­son is li­able in dam­ages.

Art. 56

D. Li­ab­il­ity for an­im­als

I. Dam­ages

1In the event of loss or dam­age caused by an an­im­al, its keep­er is li­able un­less he proves that in keep­ing and su­per­vising the an­im­al he took all due care or that the dam­age would have oc­curred even if all due care had been taken.

2 He has a right of re­course if the an­im­al was pro­voked either by an­oth­er per­son or by an an­im­al be­long­ing to an­oth­er per­son.

3…1

Art. 57
II. Seizure of an­im­als

1 A per­son in pos­ses­sion of a plot of land is en­titled to seize an­im­als be­long­ing to an­oth­er which cause dam­age on that land and take them in­to his cus­tody as se­cur­ity for his claim for com­pens­a­tion or even to kill them, where jus­ti­fied by the cir­cum­stances.

2 He non­ethe­less has an ob­lig­a­tion to no­ti­fy the own­er of such an­im­als without delay or, if the own­er is not known to him, to take the ne­ces­sary steps to trace the own­er.

Art. 58

E. Li­ab­il­ity of prop­erty own­ers

I. Dam­ages

1 The own­er of a build­ing or any oth­er struc­ture is li­able for any dam­age caused by de­fects in its con­struc­tion or design or by in­ad­equate main­ten­ance.

2 He has a right of re­course against per­sons li­able to him in this re­gard.

Art. 59

II. Safety meas­ures

1 A per­son who is at risk of suf­fer­ing loss or dam­age due to a build­ing or struc­ture be­long­ing to an­oth­er may in­sist that the own­er take the ne­ces­sary steps to avert the danger.

2 Or­ders giv­en by the po­lice for the pro­tec­tion of per­sons and prop­erty are un­af­fected.

Art. 59
a

F. Li­ab­il­ity in re­spect of cryp­to­graph­ic keys

1 The own­er of a cryp­to­graph­ic key used to gen­er­ate elec­tron­ic sig­na­tures or seals is li­able to third parties for any loss or dam­age they have suffered as a res­ult of re­ly­ing on a val­id cer­ti­fic­ate is­sued by a pro­vider of cer­ti­fic­a­tion ser­vices with­in the mean­ing of the Fed­er­al Act of 18 March 20162 on Elec­tron­ic Sig­na­tures.

2 The own­er is ab­solved of li­ab­il­ity if he can sat­is­fy the court that he took all the se­cur­ity pre­cau­tions that could reas­on­ably be ex­pec­ted in the cir­cum­stances to pre­vent mis­use of the cryp­to­graph­ic key.

3 The Fed­er­al Coun­cil defines the se­cur­ity pre­cau­tions to be taken pur­su­ant to para­graph 2.

Art. 60

G. Time lim­its

1A claim for dam­ages or sat­is­fac­tion be­comes time-barred one year from the date on which the in­jured party be­came aware of the loss or dam­age and of the iden­tity of the per­son li­able for it but in any event ten years after the date on which the loss or dam­age was caused.

2 However, if the ac­tion for dam­ages is de­rived from an of­fence for which crim­in­al law en­vis­ages a longer lim­it­a­tion peri­od, that longer peri­od also ap­plies to the civil law claim.

3 Where the tort has giv­en rise to a claim against the in­jured party, he may re­fuse to sat­is­fy the claim even if his own claim in tort is time-barred.

Art. 61

H. Li­ab­il­ity of civil ser­vants and pub­lic of­fi­cials

1 The Con­fed­er­a­tion and the can­tons may by way of le­gis­la­tion en­act pro­vi­sions that de­vi­ate from those of this Sec­tion to gov­ern the li­ab­il­ity of civil ser­vants and pub­lic of­fi­cials to pay dam­ages or sat­is­fac­tion for any dam­age they cause in the ex­er­cise of their du­ties.

2 The pro­vi­sions of this Sec­tion may not, however, be mod­i­fied by can­ton­al le­gis­la­tion in the case of com­mer­cial du­ties per­formed by civil ser­vants or pub­lic of­fi­cials.

 SWISS CIVIL CODE: Obligations in Tort(41 – 61)