Knowledge base

General principles

A mandate arises when one party entrusts another with a business matter or service. It may be remunerated or gratuitous.

Mandate law covers many agreements. The defining feature is that the mandatary owes diligent activity rather than a guaranteed result.

Examples of agreements governed by mandate law include:

• Medical treatment agreement

• Mandate agreement with a lawyer

• Agreement with a bank

A mandate requires no particular form and can be oral. Most mandate rules may also be varied by contractual agreement.

A mandatory rule allows either party to terminate a mandate at any time. However, a party terminating at an inopportune time must compensate the other for resulting damage.

Scope of the mandate

The mandate's scope generally follows the nature of the matter. Define it precisely in the agreement to avoid disputes.

Certain acts require special authority and are covered by the mandate only if expressly agreed, including:

• concluding settlements

• accepting arbitration

• entering into obligations under bills of exchange

• selling or encumbering real estate

• making gifts

This is particularly important where an agent represents the principal. For example, an employee authorised to negotiate contracts cannot make gifts in your name unless expressly authorised.

Duty of personal performance

Unless otherwise agreed, the mandatary must perform personally. Exceptions include assistants for subordinate tasks or an agreed authorisation to delegate.

General principles

Under an employment contract, an employee undertakes to work for an employer for a period in return for wages. The contract necessarily involves remuneration.

Form

An employment contract generally requires no particular form. After one month, however, the employer must provide written information about:

• the parties' names

• the employment start date

• the employee's role

• wages and any supplements

• weekly working time

Wages

Wages are generally determined by the individual employment contract or a collective employment agreement (GAV).

Besides time-based wages paid hourly or monthly, piecework wages are calculated according to work performed.

Bonuses frequently cause disputes over whether they are payable. A bonus is generally due if its nature and amount were determined in advance and the employer has no remaining discretion. Otherwise, various factors matter, including whether the bonus is secondary compared with wages, how wages compare with the median, whether bonuses were paid in previous years and whether a reservation of voluntariness was made.

Overtime

Overtime means hours worked beyond the agreed weekly working time. If your contract specifies 40h per week, each additional hour is overtime.

Where possible, overtime should be compensated by time off of at least equal duration. Otherwise, payment with a 25% supplement may apply.

Anna's employment contract provides for 40h per week at 30 CHF/h. If she works 43h, she has worked 3 overtime hours. If these are not compensated by time off, the employer must pay for them. With the supplement, the rate is 37.5 CHF/h (30*1.25).

Termination

Employees and employers may generally terminate an employment contract without a specific reason by observing notice periods. However, restrictions apply.

Termination may be abusive where, among other things, it is given:

• because of an aspect of the other party's personality, unless related to employment or substantially impairing workplace cooperation
  For example: age, religion, gender

• because the other party exercises a constitutional right, unless this breaches an employment duty or substantially impairs workplace cooperation
  For example: supporting an initiative

• to prevent the other party's employment-related claims from arising
  For example: entitlement to an end-of-year bonus

• because the other party asserts employment-related claims
  For example: asserting overtime claims

If you consider termination abusive, you must respond. Your objection must be made in writing and by the end of the notice period at the latest submitted to the party giving notice. An action for compensation must then be filed within 180 days after employment ends.

An action may result in compensation of up to 6 months' wages, but termination remains effective.

Steps to take after abusive termination:

1. Objection to the employer by the end of the notice period at the latest

2. File an action for compensation within 180 days after employment ends

There is also a Termination during protected periods. This means that termination during this period is invalid . After probation, protected periods include:

• 4 weeks before and after compulsory military service, civil protection service or Swiss civilian service served, provided the service lasted more than 11 days.

• In cases of Illness or accident the employee is protected against termination for 30, 90 or 180 days depending on years of service.

• During Pregnancy and for 16 weeks afterwards

Termination without notice is also possible, but must not be groundless. It requires circumstances making continuation until the end of the notice period unreasonable .

General principles

Under a tenancy agreement, the landlord provides an item for the tenant's use in return for rent. It necessarily involves payment.

Start of the tenancy

At the start of the tenancy, a tenant is entitled to information about the previous rent and to inspect the previous tenant's return inspection report.

Where required by cantonal law, the landlord must communicate initial rent on the official form. Otherwise the initial rent is invalid.

Defects

Tenants generally carry out and pay for minor maintenance, such as replacing a light bulb. Moderate and serious defects must be remedied and paid for by the landlord.

If your rented property has a defect and the landlord refuses to remedy it, several options are available.

For substantial defects, tenants may claim a rent reduction until the defect is remedied.

Damages

In certain circumstances, tenants may terminate without notice.

For moderate defects, a tenant may generally arrange rectification at the landlord's expense, subject to legal conditions.

The right to deposit rent with a cantonal designated authority

Contact us if your landlord refuses to remedy a defect. We can explain which options apply and how to use them.

Rent

Where required, initial rent must be communicated on an official form. Even formally correct rent accepted by both parties may be abusive if it generates an excessive return. Initial rent can be challenged at the start of the tenancy, or existing rent may be challenged during it under the applicable rules.

Ordinary termination

Both parties to a tenancy must observe notice periods. For residential accommodation, this is 3 months, with notice taking effect on a customary local termination date where such dates apply.

• In Zurich and Solothurn: 31 March and 30 September

• In Schwyz, St. Gallen, Basel-Stadt, Basel-Landschaft, Schaffhausen, Appenzell Innerrhoden, Appenzell Ausserrhoden and Uri: no fixed dates, but not 31 December

• In Aargau, Neuchâtel, Nidwalden and Obwalden: 31 March, 30 June and 30 September

• In Fribourg: 31 March, 30 June, 30 September and 21 December

• In Geneva, Lucerne, Valais and Glarus: the end of any month

• In Graubünden, Jura, Bern and Ticino: dates vary by municipality

If the termination date is 31 March, notice must reach the landlord by 31 December at the latest. Posting it on that date is insufficient.

Abusive termination

As in employment law, tenancy law recognises abusive termination. This includes notice given by a landlord:

• because the tenant asserts rights arising from the tenancy;

• because the landlord wants to induce the tenant to buy the apartment;

• During the 3 years after conciliation or court proceedings between the parties in which the landlord was substantially unsuccessful, withdrew the claim or waived court proceedings;

In such cases you must respond immediately and submit a conciliation request within 30 days of receiving notice.

General principles

Under a contract for work, a contractor produces a specified result for a customer in return for payment, such as a table made by a carpenter. Unlike a mandate, a specific result is owed. A mandatary instead owes diligent performance: a doctor cannot promise recovery but must act carefully.

Remuneration

Unlike a mandate, a contract for work necessarily involves remuneration, generally payable on completion.

If the price is determined inadvance it must generally be paid. An exception may apply where extraordinary circumstances make completion excessively difficult or prevent it, such as an unforeseeable major rise in raw material prices. The court may adjust remuneration or permit termination.

If the price is not fixed in advance or only estimated, remuneration is determined by the value of the work and expenditure. Industry tariffs and, for architects, SIA Standard 102 are often used as guidance.

The parties may agree other pricing arrangements, but the party asserting them must prove them. We therefore recommend written terms.

Termination

The contract generally ends when the work is delivered and payment made. Exceptions permit the contractor or customer to terminate earlier.

The customer may terminate the contract if:

• The contractor exceeds an agreed approximate price disproportionate without agreement
  For a house or other works erected on land, the customer cannot simply withdraw. They must seek a judicial reduction of remuneration or pay for work already completed and withdraw from the remainder.

• if the work is accidentally destroyed before delivery.
  The customer owes no remuneration in this case unless they were in default.

• The customer may withdraw at any time even without grounds, but must pay for work already performed and compensate the contractor, including lost profit.

• If the work has defects so serious that it is unusable or acceptance is unreasonable, the customer may refuse it.
  For less serious defects, the customer may claim a reduction in value but not withdraw.
  For works erected on land, a reduction in value is generally the applicable remedy even for substantial defects.