1
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force. Swiss Civil Code of 10 December 1907 (Status as of 1 January 2018) The Federal Assembly of the Swiss Confederation, based on Article 64 of the Federal Constitution1,2
and having considered the Dispatch of the Federal Council dated 28 May 19043, decrees: Introduction
Art. 1
1 The law applies according to its wording or interpretation to all legal questions for which it contains a provision.
2
In the absence of a provision, the court4 shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator.
3
In doing so, the court shall follow established doctrine and case law.
Art. 2
1 Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations.
2
The manifest abuse of a right is not protected by law.
Art. 3
1 Where the law makes a legal effect conditional on the good faith of a person, there shall be a presumption of good faith.
AS 24 233, 27 207 and BS 2 3 1
[CCFL 1 3]. This provision corresponds to Art. 122 of the Federal Constitution of 18 April 1999 (SR 101).
2
Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
3
BBl 1904 IV 1, 1907 VI 367 4
Term in accordance with No I 1 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1). This amendment is taken into consideration throughout the Code.
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A. Application
of the law
B. Scope and
limits of legal
relationships I. Acting in good faith
II. Good faith
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210
2
No person may invoke the presumption of good faith if he or she has failed exercise the diligence required by the circumstances.
Art. 4
Where the law confers discretion on the court or makes reference to an
assessment of the circumstances or to good cause, the court must reach its decision in accordance with the principles of justice and equity.
Art. 5
1 Insofar as federal law reserves the application of cantonal law, the cantons may enact or repeal civil law provisions.
2
Where the law makes reference to practice or local custom, the existing cantonal law is deemed a valid expression thereof, provided no divergent practice is shown to exist.
Art. 6
1 Federal civil law does not restrict the right of the cantons to enact public law.
2
The cantons are entitled within the limits of their sovereignty to restrict or prohibit the trade in certain goods or to declare transactions involving such goods legally invalid.
Art. 7
The general provisions of the Code of Obligations6 concerning the
formation, performance and termination of contracts also apply to other civil law matters.
Art. 8
Unless the law provides otherwise, the burden of proving the existence
of an alleged fact shall rest on the person who derives rights from that fact.
Art. 9
1 Public registers and public deeds constitute full proof of the facts evidenced by them, unless their content is shown to be incorrect.
5
Term in accordance with No I 1 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1). This amendment is taken into consideration throughout the Code.
6
SR 220
III. Judicial5
discretion
C. Federal law
and cantonal law I. Cantonal civil law and local
custom
II. Cantonal
public law
D. General
provisions of the
Code of
Obligations
E. Rules of
evidence I. Burden of proof
II. Proof by
public document
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2
Such proof of incorrectness does not require to be in any particular form.
Art. 10
7
Art. 11
1 Every person has legal capacity.
2
Accordingly, within the limits of the law, every person has the same capacity to have rights and obligations.
Art. 12
A person who has capacity to act has the capacity to create rights and
obligations through his actions.
Art. 13
8 A person who is of age and is capable of judgement has the capacity
to act.
Art. 14
9 A person is of age if he or she has reached the age of 18.
Art. 15
10
Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
8
Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
9
Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), with effect from 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
10
Repealed by No I of the FA of 7 Oct. 1994 (AS 1995 1126; BBl 1993 I 1169).
A. Personality in
general I. Legal capacity II. Capacity
to act 1. Nature
2. Requirements a. In general b. Majority
c. …
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Art. 16
11 A person is capable of judgement within the meaning of the law if he
or she does not lack the capacity to act rationally by virtue of being under age or because of a mental disability, mental disorder, intoxication or similar circumstances.
Art. 17
12 A person does not have the capacity to act if he or she is incapable of
judgement or is under age or is subject to a general deputyship.
Art. 18
A person who is incapable of judgement cannot create legal effect by
his or her actions, unless the law provides otherwise.
Art. 19
1 Persons who are capable of judgement but lack the capacity to act may only enter into obligations or give up rights with the consent of their legal representative.14 2 Without such consent, they may only accept advantages that are free of charge or carry out minor everyday transactions.15 3 They are liable in damages for unpermitted acts.
a16 1 Unless the law provides otherwise, the legal representative may consent expressly or tacitly in advance or approve the transaction retrospectively.
2
The other party is relieved of any obligation if approval is not given within a reasonable period that he or she fixes or has fixed by a court.
11 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
12 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
13 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
14 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
15 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
16 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
d. Capacity of
judgement
III. Incapacity 1. In general 2. Lack of
capacity of
judgement
3. Persons
capable of
judgement but
lacking the
capacity to act.
a. Principle13
b. Consent of the
legal representative
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b17 1 If the legal representative does not grant approval, either party may demand restitution of any performance already made. A person lacking capacity to act is however only liable to the extent that he or she has already benefited from the performance or to which he or she has been enriched at the time of the demand or has alienated the benefits in bad faith.
2
If the person lacking capacity to act has induced the other party to erroneously assume that he or she has the capacity to act, he or she is liable for the loss or damage incurred.
c18 1 Persons capable of judgement but lacking capacity to act exercise their strictly personal rights independently; cases where the law requires the consent of the legal representative are reserved.
2
The legal representative acts for a person lacking capacity of judgements unless a right is so strictly personal that any form of representation is excluded.
d19 The capacity to act may be restricted by an adult protection measure.
Art. 20
1 The degree of kinship21 is determined by the number of intermediary generations.
2
Lineal kinship exists between two persons where one is descended from the other and collateral kinship exists between two persons where both are descended from a third person and are not related lineally.
17 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
18 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
19 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
20 Amended of margin title in accordance with No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819, 1973 92; BBl 1971 I 1200).
21
Term amended by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
c. Absence of
consent
4. Strictly
personal rights
IIIbis. Restriction of the capacity to
act
IV.20 Kinship by
blood and by
marriage 1. Blood kinship
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Art. 21
22 1 Where one person is related to another, he or she is related as an inlaw to the latter's spouse or registered partner in the same line and to the same degree.
2
Kinship by marriage is not ended by dissolution of the marriage or of the registered partnership which created it.
Art. 22
1 The place of origin of a person is determined by his or her citizenship.
2
Citizenship is governed by public law.
3
If a person is a citizen of more than one place, his or her place of origin is the one in which he or she is or was most recently resident or, in the absence of any such residence, the one in which he or she or his or her ancestors last acquired citizenship.
Art. 23
1 A person's domicile is the place in which he or she resides with the
intention of settling; residence for the purpose of education or the accommodation of a person in an educative institution or care home, a hospital or a penal institution does not by itself establish domicile.23 2 No person may have more than one domicile at a time.
3
This provision does not apply to places of business.
Art. 24
1 A person retains his or her domicile until such time as a new one is acquired.
2
A person's domicile is deemed to be the place in which he or she is temporarily resident if no previously established domicile may be proven or if he or she was formerly resident abroad and has not yet established a domicile in Switzerland.
22 Amended by Annex No. 8 of the Registered Partnership Act of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685; BBl 2003 1288).
23 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
2. Kinship by
marriage
V. Place of
origin and
domicile 1. Origin
2. Domicile a. Definition b. Change of
domicile,
temporary
residence
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Art. 25
24 1 The domicile of a child subject to parental responsibility26 is deemed to be that of the parents or, if the parents have different domiciles, that of the parent with whom the child is resident; in all other cases it is deemed to be the child's temporary domicile.
2
Children under guardianship are domiciled at the seat of the child protection authority.27
Art. 26
28 Adults subject to a general deputyship are domiciled at the location of the adult protection authority.
Art. 27
1 No person may, wholly or in part, renounce his or her legal capacity or his or her capacity to act.
2
No person may surrender his or her freedom or restrict the use of it to a degree which violates the law or public morals.
Art. 28
30 1 Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement.
2
An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.
24
Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
25 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
26 Term in accordance with No I 1 of the FA of 26 June 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1). This amendment is taken into consideration throughout the Code.
27 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
28 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
29 Amended by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
30
Amended by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
c. Domicile of
minors25
d. Persons in
institutions
B. Protection of
legal personality I. Against excessive
restriction29
II. Against
infringements 1. Principle
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a31 1 The applicant may ask the court: 1. to prohibit a threatened infringement; 2. to order that an existing infringement cease; 3. to make a declaration that an infringement is unlawful if it continues to have an offensive effect.
2
In particular the applicant may request that the rectification or the judgment be notified to third parties or published.
3
Claims for damages and satisfaction and for handing over profits in accordance with the provisions governing agency without authority are reserved.
b33 1 To obtain protection from violence, threats or harassment the applicant may request the court in particular to order the offending party to refrain from:
1. approaching the applicant or from entering a defined area around the applicant's dwelling; 2. frequenting specified locations, notably particular streets, squares or districts; 3. from making contact with the applicant, especially by telephone, in writing or electronically, or from harassing the applicant in any other way.
2
If the applicant lives in the same dwelling as the offending party, the applicant may ask the court to order the offending party to leave the dwelling for a specified period. This period may be extended on one occasion for good cause.
3
Where justified by the circumstances, the court may: 1. require the applicant to pay reasonable compensation for his or her exclusive use of the dwelling; or 2. with the landlord's consent, transfer the rights and obligations under the lease to the applicant alone.
31
Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
32 Amended by No I of the FA of 23 June 2006 (Protection of the Personality against Violence, Threats and Harassment), in force since 1 July 2007 (AS 2007 137; BBl 2005 6871 6897).
33 Inserted by No I of the FA of 16 Dec. 1983 (AS 1984 778; BBl 1982 II 636). Amended by No I of the FA of 23 June 2006 (Protection of the Personality against Violence, Threats and Harassment), in force since 1 July 2007 (AS 2007 137; BBl 2005 6871 6897).
2. Actions a. In general32 b. Violence,
threats or
harassment
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4
The cantons shall designate an authority which in urgent cases may order the immediate expulsion of the offending party from the joint dwelling and shall enact rules governing the procedure.
c-28f34
g35 1 Any person whose personality rights are directly affected by a representation of events in periodically appearing media, especially the press, radio or television, shall have a right of reply.
2
There is no right of reply in respect of accurate reports of the public dealings of an authority in which the affected person took part.
h37 1 The text of the reply must be succinct and confine itself to the subject matter of the contentious representation.
2
The reply may be refused if it is plainly incorrect or violates the law or public morals.
i38 1 The author of the reply must send the text to the media company within 20 days of learning of the contentious representation, but at the latest within three months of publication.
2
The media company must immediately inform the author of the reply when it will be published or why it is rejected.
34
Inserted by No I of the FA of 16 Dec. 1983 (AS 1984 778; BBl 1982 II 636). Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
35
Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
36 Amended by No I of the FA of 23 June 2006 (Protection of the Personality against Violence, Threats and Harassment), in force since 1 July 2007 (AS 2007 137; BBl 2005 6871 6897).
37
Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
38
Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
3. …
4. Right of reply a. Principle36 b. Form and
content
c. Procedure
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k39 1 The reply must be published as soon as possible and in such a manner as to ensure that it reaches the same audience or readership as the contentious representation.
2
The reply must be identified as such; the media company is not permitted to make any addition except to state whether it stands by its representation or to indicate its sources.
3
The reply must be published free of charge.
l40 1 If the media company obstructs the right of reply, rejects the reply or fails to publish it correctly, the party in question may petition the court.
2
…41
3
and 4 …42
Art. 29
1 If a person's use of his or her name is disputed, he or she may apply for a court declaration confirming his rights.
2
If a person is adversely affected because another person is using his or her name, he or she may seek an order prohibiting such use and, if the user is at fault, may bring a claim for damages and, where justified by the nature of the infringement, for satisfaction.
Art. 30
1 The government of the canton of residence may permit a person to change his or her name for good cause.44 2 …45
39
Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
40
Inserted by No I of the FA of 16 Dec. 1983, in force since 1 July 1985 (AS 1984 778; BBl 1982 II 636).
41 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
42 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
43 Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
44
Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
45
Repealed by No I of the FA of 30 Sept. 2011 (Name and Citizenship), with effect from 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
d. Publication
e. Recourse to
the courts
III. Right to use
one's name 1. Protection of one's name
2. Change of
name a. General43
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3
A person adversely affected by a change of name may contest the same in court within one year of learning thereof.
a46 A person whose spouse dies may, if that person changed his or her
surname on marriage, at any time declare before the civil registrar the wish to revert to the name by which he or she was known prior to the marriage.
Art. 31
1 Personality rights begin on the birth of the living child and end on death.
2
An unborn child has legal capacity provided that it survives birth.
Art. 32
1 Any person who, in exercising a right, relies on the fact that another person is living or has died or was alive at a particular time or survived another person must produce evidence thereof.
2
If it cannot be proved that, of a group of several deceased persons, one survived another, all are deemed to have died at the same time.
Art. 33
1 Proof of the birth or death of a person is established by the records kept by the civil register.
2
If records are missing or shown to be incorrect, proof may be adduced in another form.
Art. 34
The death of a person is deemed proven, even if no-one has seen the
corpse, if that person has disappeared in circumstances in which his death may be considered certain.
Art. 35
1 If it is highly probable that a person is dead because he or she has disappeared in extremely life-threatening circumstances or has been missing for a lengthy period without any sign of life, the court may declare that person presumed dead on application by any person deriving rights from his or her death.
46 Inserted by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
b. On the death
of a spouse
C. Beginning
and end of
personality rights I. Birth and death
II. Proof 1. Burden of proof
2. Evidence a. In general b. Presumption
of death
III. Declaration
of presumed
death 1. In general
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2
…47
Art. 36
1 The application may be made when at least one year has elapsed since the life-threatening event or five years have elapsed since the last sign of life.
2
The court must, by suitable public means, call on any person who may provide information about the missing person to come forward within a specified period.
3
The period shall run for at least one year following the first public notice.
Art. 37
If the missing person comes forward within the set period or if news
of the missing person is received or if the date of his or her death is proved, the application fails.
Art. 38
1 If no news is received during the set period, the missing person is declared presumed dead and rights derived from the fact of his or her death may be enforced as if death were proven.
2
The declaration of presumed death has retroactive effect from the time of the life-threatening event or the last sign of life.
3
A declaration of presumed death dissolves a marriage.48 Chapter Two:49 Registration of Civil Status
Art. 39
1 Civil status is recorded in electronic registers.50 2
Civil status includes in particular: 1. a person's particulars, such as those relating to birth, marriage and death;
47 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
48 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
49 Amended by No I 1 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
50 Amended by No I of the FA of 5 Oct. 2001 (Electronic civil register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
2. Procedure
3. Failure of
application
4. Effect
A. Registers I. In general
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2.51 a person's status under the law of persons and family law, such as majority, parentage and marriage; 3. names; 4. cantonal and communal citizenship; 5. nationality.
Art. 40
1 The Federal Council determines which persons and authorities have a duty to furnish the information necessary to record civil status.
2
It may provide that breaches of said duty be punishable by fines.
3
…53
Art. 41
1 Where documentary proof of information concerning civil status is required but is impossible or unreasonably difficult to obtain despite making reasonable efforts, the cantonal supervisory authority may accept a declaration made in the presence of the registrar as proof provided such information is not disputed.
2
The registrar shall remind any person making such a declaration of his or her duty to tell the truth and that a false declaration may lead to prosecution.
Art. 42
1 Any person who satisfies the court that he or she has a personal interest warranting protection may seek an order for the registration of disputed information concerning personal status or the rectification or removal of an entry. The court shall hear the relevant cantonal supervisory authority, to which it shall notify its judgment.
2
The cantonal supervisory authorities are likewise entitled to make such applications.
Art. 43
The register authorities must of their own accord rectify mistakes
resulting from an obvious oversight or error.
51 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
52 Amended by No I of the FA of 5 Oct. 2001 (Electronic civil register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
53 Repealed by No I of the FA of 5 Oct. 2001 (Electronic civil register), with effect from 1 July 2004 (AS 2004 2911; BBl 2001 1639).
II. Duty to
notify52
III. Proof of
undisputed
information
IV. Rectification 1. By court order 2. By the register
authorities
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a54 1 In relation to the registration of civil status, the Federal Council is responsible for safeguarding the personality and constitutional rights of persons in respect of whom data is processed.
2
It regulates the disclosure of data to private persons who may show a direct interest warranting protection.
3
It stipulates those authorities, in addition to the register authorities, to whom the data necessary for the performance of their legal duties may be disclosed periodically or on request. The disclosure provisions under cantonal law are reserved.
3bis
The register authorities are required to report to the competent authority any criminal offences that come to their attention while carrying out their official duties.55 4 The following bodies have online access to data required for proving the identity of a person: 1. the issuing authorities under the Federal Act of 22 June 200156 on Identification Documents for Swiss Nationals; 2.57 the federal agency responsible for operating the computerised police search system under Article 15 of the Federal Act of 13 June 200858 on the Federal Police Information Systems and the filtering agencies of the cantonal and communal police forces linked into the search system; 3. the federal agency responsible for keeping the computerised register of convictions under Art. 359 of the Criminal Code59; 4. the federal agency responsible for investigations regarding missing persons60;
5.61 the Federal Intelligence Service for the early detection and prevention of threats to internal or external security in accordance with Article 6 paragraph 1 letter a of the Intelligence Service Act of 25 September 201562.
54 Introduced by No I of the FA of 5 Oct. 2001 (Electronic civil register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
55 Inserted by No. I 3 of the FA of 15 June 2012 on Measures against Forced Marriages, in force since 1 July 2013 (AS 2013 1035; BBl 2011 2185).
56 SR
143.1
57 Amended by Annex 1 No. 4 of the FA of 13 June 2008 on the Federal Police Information Systems, in force since 5 Dec. 2008 (AS 2008 4980; BBl 2006 5061).
58 SR
361
59 Now: Art. 365.
60 Currently the Federal Office of Police.
61 Inserted by Annex No II 4 of the Intelligence Service Act of 25 Sept. 2015, in force since 1 Sept. 2017 (AS 2017 4095; BBl 2014 2105).
62 SR
121
V. Data protection and
disclosure
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Art. 44
1 In particular, the registrars shall perform the following tasks: 1. they maintain the civil register; 2. they make notifications and provide extracts; 3. they carry out the preparatory procedure for weddings and conduct the wedding ceremony; 4. they record declarations as to civil status.
2
Exceptionally, the Federal Council may entrust a representative of Switzerland abroad with these tasks.
Art. 45
1 Each canton shall appoint a supervisory authority.
2
In particular, the supervisory authority shall perform the following tasks:
1. it supervises the register offices; 2. it supports and advises the register offices; 3. it assists in maintaining the civil register and in carrying out the preparatory procedure for weddings; 4. it issues directives on recognition and recording of matters relating to civil status that occur abroad and of foreign judicial and administrative decisions concerning civil status;
5. it provides for the basic and continuing education and training of persons working in the civil register service.
3
The Confederation is responsible for oversight. It may have recourse to cantonal appeal procedures against the decisions of the registrars and the supervisory authorities.63
a64 1 The Confederation shall operate a central database for the cantons.
2
The database is financed by the cantons. The costs are allocated according to population.
3
Within the limits of the law and in co-operation with the cantons, the Federal Council regulates: 1. the method of co-operation; 2. the rights of access of the civil register authorities; 63 Amended by No I of the FA of 5 Oct. 2001 (Electronic civil register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
64 Inserted by No I of the FA of 5 Oct. 2001 (Electronic civil register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
B. Organisation I. Civil register authorities 1. Civil registrars 2. Supervisory
authorities
Ia. Central
database
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3. the organisational and technical measures necessary to safeguard data protection and data security;
4. archiving.
Art. 46
1 Any person suffering loss caused unlawfully by persons employed in the civil register service in the exercise of their official duties is entitled to damages and, where justified by the gravity of the loss, to satisfaction.
2
The canton is liable; it may have recourse against persons who have caused loss wilfully or through gross negligence.
3
The Government Liability Act of 14 March 195865 applies in relation to persons employed by the Confederation.
Art. 47
1 Wilful or negligent breaches of official duty by persons working in civil register offices are subject to disciplinary measures taken by the cantonal supervisory authority.
2
Disciplinary measures shall consist of reprimands, fines of up to CHF 1000 or, in serious cases, removal from office.
3
The right to prosecute is reserved.
Art. 48
1 The Federal Council issues the provisions on implementation.
2
In particular it regulates: 1. the registers to be maintained and the information to be recorded;
2. the use of the OASI number in accordance with Article 50c of the Federal Act of 20 December 194666 on the Old-Age and Survivors' Insurance for the purpose of electronic data exchange between official registers of persons; 3. the maintenance of the register; 4. supervision.67 3
To ensure technically reliable implementation the Federal Council may set minimum requirements for the basic and continuing education 65 SR
170.32
66 SR
831.10; AS 2006 5259 (BBl 2006 5777) 67 Amended by Annex No. 2 of the Register Harmonisation Act of 23 June 2006, in force since 1 Jan. 2008 (SR 431.02).
II. Liability
III. Disciplinary
measures
C. Implementing
provisions I. Federal law
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210
and training of personnel in the civil register service and for the function of registrar.
4
It determines the fees charged by the civil register service.
5
It determines the conditions on which it is permissible by electronic means:
1. to provide civil status information; 2. to make declarations concerning civil status; 3. to make notifications and provide extracts from the civil register.68
Art. 49
1 The cantons define the civil register districts.
2
They enact the provisions necessary for implementation within the framework of federal law.
3
Such cantonal provisions, with the exception of those concerning remuneration of personnel, are subject to approval by the Confederation.
Art. 50
and 51 Repealed Title Two: Legal Entities Chapter One: General Provisions
Art. 52
1 Associations of persons organised as corporate bodies and independent bodies with a specific purpose acquire legal personality on being entered in the commercial register.
2
Public law corporations and bodies, and associations that do not have a commercial purpose do not require registration.69 3 Associations of persons and bodies which pursue an immoral or unlawful purpose may not acquire legal personality.
68 Inserted by No I of the FA of 5 Oct. 2001 (Electronic Civil Register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
69 Amended by No I 1 of the FA of 12 Dec. 2014 on the Implementation of the 2012 Revision of the Recommendations of the Financial Action Task Force, in force since 1 Jan. 2016 (AS 2015 1389; BBl 2014 605).
II. Cantonal law
A. Legal
personality
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210
Art. 53
Legal entities have all the rights and duties other than those which
presuppose intrinsically human attributes, such as gender, age or kinship.
Art. 54
Legal entities have capacity to act once the governing bodies required
by law and their articles of association have been appointed.
Art. 55
1 The governing bodies express the will of the legal entity.
2
They bind the legal entity by concluding transactions and by their other actions.
3
The governing officers are also personally liable for their wrongful acts.
Art. 56
70
The seat of the legal entity is located where its administration is carried out, unless its articles of association provide otherwise.
Art. 57
1 On dissolution of a legal entity, and unless provided otherwise by law, the articles of association, the founding charter or the governing bodies, its assets pass to the state authority (Confederation, canton, commune) to which the entity had been assigned according to its objects.
2
Such assets must be used as far as possible for the original purpose.
3
Where a legal entity is dissolved due to its pursuit of immoral or unlawful objects, the assets pass to the state authority even where contrary provision has been made.71
Art. 58
The procedure for liquidating the assets of the legal entity is governed
by the regulations for cooperatives.
70 Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
71 Amended by No I of the FA of 8 Oct. 2004 (Law on Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
B. Legal
capacity
C. Capacity
to act I. Requirements II. Action on
behalf of the
legal entity
D. Seat
E. Dissolution I. Application of assets
II. Liquidation
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210
Art. 59
1 Public and ecclesiastical corporations and institutions are governed by federal and cantonal public law.
2
Associations of persons which pursue a commercial purpose are subject to the provisions on companies and cooperatives.
3
Common land cooperatives and similar bodies remain subject to the provisions of cantonal law.
Chapter Two: Associations
Art. 60
1 Associations with a political, religious, scientific, cultural, charitable, social or other non-commercial purpose acquire legal personality as soon as their intention to exist as a corporate body is apparent from their articles of association.
2
The articles of association must be done in writing and indicate the objects of the association, its resources and its organisation.
Art. 61
1 Once the articles of association have been ratified and the committee appointed, the association is eligible for entry in the commercial register.
2
The association must be registered if it: 1. conducts a commercial operation in pursuit of its objects; 2. is subject to an audit requirement.73 3
The articles of association and a list of committee members must be enclosed with the application for registration.
Art. 62
Associations which cannot acquire or have not yet acquired legal
personality are treated as simple partnerships.
72 Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
73 Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
F. Reservation of
public law and
company law
A. Formation I. Corporate group of persons
II. Entry in the
commercial
register72
III. Associations
lacking legal
personality
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210
Art. 63
1 Where the articles of association do not provide rules for the association's organisation or its relationship with its members, the following provisions apply.
2
Mandatory provisions of law cannot be altered by the articles of association.
Art. 64
1 The general meeting of members is the supreme governing body of the association.
2
The general meeting is called by the committee.
3
General meetings must be convened in accordance with the rules set out in the articles of association and also, as required by law, if onefifth of the members so request.
Art. 65
1 The general meeting of members decides on admission and exclusion of members, appoints the committee and decides all matters which are not reserved to other governing bodies of the association.
2
It supervises the activities of the governing bodies and may at any time dismiss the latter without prejudice to any contractual rights of those dismissed.
3
The right of dismissal exists by law whenever justified by good cause.
Art. 66
1 Resolutions are passed by the general meeting.
2
The written consent of all members to a proposal is equivalent to a resolution of the general meeting.
Art. 67
1 All members have equal voting rights at the general meeting.
2
Resolutions require a majority of the votes of the members present.
3
Resolutions may be taken on matters for which proper notice has not been given only where this is expressly permitted by the articles of association.
IV. Relationship
between articles
of association
and the law
B. Organisation I. General meeting 1. Function,
convening of
meetings
2. Powers
3. Resolutions a. Form b. Voting rights
and majority
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210
Art. 68
Each member is by law excluded from voting on any resolution concerning a transaction or dispute between him or her, his or her spouse or a lineal relative on the one hand and the association on the other.
Art. 69
The committee is entitled and obliged as defined under the articles of
association to manage and represent the association.
a75 The committee shall maintain the association's business ledgers. The
provisions of the Code of Obligations76 on commercial bookkeeping and accounting apply mutatis mutandis.
b77 1 The association must submit its accounts to a full audit by external auditors if two of the following figures are exceeded in two successive business years: 1. total assets of CHF 10 million; 2. turnover of CHF 20 million; 3. average annual total of 50 full-time staff.
2
The association must submit its accounts to a limited audit by external auditors if a member with personal liability or an obligation to provide further capital so requests.
3
The provisions of the Code of Obligations78 on external auditors for companies apply mutatis mutandis.
4
In all other cases the articles of association and the general meeting79 are free to make such auditing arrangements as they deem fit.
74 Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
75 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names; AS 2007 4791; BBl 2002 3148, 2004 3969).
Amended by Annex No. 1 of the FA of 23 Dec. 2011 (Accounting Law), in force since 1 Jan. 2013 (AS 2012 6679; BBl 2008 1589).
76 SR
220
77 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
78 SR
220
c. Exclusion
from voting
II. Committee 1. Rights and duties in
general74
2. Accounting
III. Auditors
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210
c80 1 If the association lacks one of the prescribed governing bodies, a member or a creditor may apply to the court for an order that the necessary measures be taken.
2
In particular, the court may set the association a time limit in which to restore the situation required by law and may, if necessary, appoint an administrator.
3
The association bears the cost of such measures. The court may order the association to make an advance payment to the persons appointed.
4
For good cause, the association may apply to the court for the removal of the persons it appointed.
Art. 70
1 Members may be admitted at any time.
2
All members have a legal right to resign subject to six months' notice expiring at the end of the calendar year or, if an administrative period is provided for, at the end of such period.
3
Membership is neither transferable nor heritable.
Art. 71
81 Members have a duty to pay subscriptions if the articles of association
so provide.
Art. 72
1 The articles of association may specify the grounds on which a member may be excluded, but exclusion may also occur without reasons being given.
2
In such cases, the exclusion may not be challenged based on the reasons.
3
Unless the articles of association provide otherwise, exclusion requires a resolution by the members and good cause.
79 Corrected by the Federal Assembly Drafting Committee (Art. 58 para. 1 ParlA; SR 171.10).
80 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
81 Amended by No I of the FA of 17 Dec. 2004 (Determination of Subscription Duties for Association Members), in force since 1 June 2005 (AS 2005 2117; BBl 2004 4835 4843).
IV. Organisational defects
C. Membership I. Admission, resignation
II. Duty to pay
subscriptions
III. Exclusion
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Art. 73
1 Members who resign or are excluded have no claim on the assets of the association.
2
They are liable for the subscriptions due during the period of their membership.
Art. 74
No member may be forced against his or her will to accept a change in
the objects of the association.
Art. 75
Any member who has not consented to a resolution which infringes
the law or the articles of association is entitled by law to challenge such resolution in court within one month of learning thereof.
a82
The association is liable for its obligations with its assets. Such liability is limited to the assets unless the articles of association provide otherwise.
Art. 76
The association may be dissolved at any time by resolution of the
members.
Art. 77
The association is dissolved by operation of law if it is insolvent or if
the committee may no longer be appointed in accordance with the articles of association.
Art. 78
Where the objects of the association are unlawful or immoral, the
competent authority or an interested party may apply for a court order of dissolution.
82 Inserted by No I of the FA of 17 Dec. 2004 (Determination of Subscription Duties for Association Members), in force since 1 June 2005 (AS 2005 2117; BBl 2004 4835 4843).
IV. Status of
former members
V. Protection of
the objects of the
association
VI. Protection of
members
Cbis. Liability
D. Dissolution I. Manner of dissolution 1. By resolution 2. By operation
of law
3. By court order
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Art. 79
Where the association is registered, the committee or the court shall
inform the commercial registrar of the dissolution so that the entry may be deleted.
Chapter Three: Foundations Art. 80
A foundation is established by the endowment of assets for a particular purpose.
Art. 81
1 A foundation may be created by public deed or by testamentary disposition.83 2
The foundation is entered in the commercial register based on its charter and, as the case may be, in accordance with any directions issued by the supervisory authority, and the entry must indicate the members of the board of trustees.
3
The probate authority shall inform the commercial registrar of the creation of the foundation by testamentary disposition.84
Art. 82
A foundation may be challenged by the founder's heirs or creditors in
the same manner as a gift.
Art. 83
85 The foundation charter shall stipulate the foundation's governing bodies and the manner in which it is to be administered.
83 Amended by No I of the FA of 8 Oct. 2004 (Law on Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
84 Inserted by No I of the FA of 8 Oct. 2004 (Law on Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
85 Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
II. Deletion from
the commercial
register
A. Formation I. In general II. Form of
establishment
III. Challenge
B. Organisation I. In general
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a86 1 The supreme governing body of the foundation shall maintain its business ledgers. The provisions of the Code of Obligations87 on commercial bookkeeping and accounting apply mutatis mutandis.
b88 1 The board of trustees shall appoint external auditors.
2
The supervisory authority may exempt a foundation from the duty to appoint external auditors. The Federal Council determines the conditions for such exemption.
3
Where there are no special provisions for foundations, the provisions of the Code of Obligations89 on external auditors for public limited companies apply mutatis mutandis.
4
If the foundation has a duty to carry out a limited audit, the supervisory authority may require a full audit where necessary for a reliable assessment of the foundation's financial situation.
c90 The external auditors must provide the supervisory authority with a
copy of the audit report and all important communications with the foundation.
d91 1 If the planned system of organisation proves inadequate or if the foundation lacks one of the prescribed governing bodies or one such body is not lawfully constituted, the supervisory authority must take the necessary measures. In particular it may: 86 Inserted by No I of the FA of 8 Oct. 2004 (Law on Foundations; AS 2005 4545; BBl 2003 8153 8191). Amended by Annex No. 1 of the FA of 23 Dec. 2011 (Accounting Law), in force since 1 Jan. 2013 (AS 2012 6679; BBl 2008 1589).
87 SR
220
88 Inserted by No I of the FA of 8 Oct. 2004 (Law on Foundations; AS 2005 4545; BBl 2003 8153 8191). Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
89 SR
220
90 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
91 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
II. Bookkeeping
III. Auditors 1. Duty of audit and applicable
law
2. Supervisory
authority
IV. Organisational defects
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210
1. set a time limit within which the foundation must restore the legally required situation; or 2. appoint the body which is lacking or an administrator.
2
In the event that the foundation is unable to organise itself effectively, the supervisory authority shall transfer its assets to another foundation with as similar objects as possible.
3
The foundation bears the cost of such measures. The supervisory authority may require the foundation to make an advance payment to the persons appointed.
4
For good cause, the foundation may request the supervisory authority to remove persons whom it has appointed.
Art. 84
1 Foundations are supervised by the state authority (Confederation, canton, commune) to which they are assigned.
1bis
The cantons may subject foundations at communal level to supervision at cantonal level.92 2
The supervisory authority must ensure that the foundation's assets are used for their declared purpose.
a93 1 Where there are grounds for concern that the foundation is overindebted or will no longer be able to meet its obligations in the longer term, its board of trustees must draw up an interim balance sheet at liquidation values and submit it to the external auditors. If the foundation has no external auditors, the board of trustees must submit the interim balance sheet to the supervisory authority.
2
If the external auditors establish that the foundation is overindebted or will no longer be able to meet its obligations in the longer term, it must submit the interim balance sheet to the supervisory authority.
3
The supervisory authority shall direct the board of trustees to take the necessary measures. If it fails to do so, the supervisory authority takes such measures itself.
4
If necessary, the supervisory authority shall take legal enforcement measures; the provisions of company law on commencement or deferral of compulsory dissolution apply mutatis mutandis.
92 Inserted by No I of the FA of 8 Oct. 2004 (Law on Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
93 Inserted by No I of the FA of 8 Oct. 2004 (Law on Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
C. Supervision
Cbis. Measures in
the event of
overindebtedness
and insolvency
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210
b94
Art. 85
95 At the request of the supervisory authority and having heard the board of trustees, the competent federal or cantonal authority may modify the foundation's organisation where such a step is urgently required in order to preserve the foundation's assets or safeguard the pursuit of its objects.
Art. 86
1 At the request of the supervisory authority or the board of trustees, the competent federal or cantonal authority may amend the objects of the foundation where the original objects have altered in significance or effect to such an extent that the foundation has plainly become estranged from the founder's intentions.97 2 Subject to the same requirements, conditions that are detrimental to the objects of the foundation may be revoked or amended.
a98 1 The competent federal or cantonal authority shall amend the objects of the foundation at the founder's request or in accordance with his or her testamentary disposition, provided that the charter reserves the right to amend the objects and that at least ten years have elapsed since the foundation was established or since the last amendment requested by the founder.
2
Where the foundation pursues public or charitable objects within the meaning of Art. 56 lit. g of the Federal Act of 14 December 1990 on Direct Federal Taxation99, such new objects must likewise be public or charitable.
94 Inserted by No I of the FA of 8 Oct. 2004 (Law on Foundations; AS 2005 4545; BBl 2003 8153 8191). Repealed by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), with effect from 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
95 Amended by No I of the FA of 8 Oct. 2004 (Law on Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
96
Amended by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
97 Amended by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
98 Inserted by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
99 SR
642.11
D. Modification
of the foundation I. Reorganisation II. Amendment
of objects 1. Request by the supervisory
authority or the
board of
trustees96
2. At the
founder's request
or in accordance
with his
testamentary
disposition
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210
3
The right to amend a foundation's objects is neither transferable nor heritable. If the founder is a legal entity, the right extinguishes at the latest 20 years after the establishment of the foundation.
4
Joint founders may only jointly request an amendment of the foundation's objects.
5
The probate authority shall inform the competent authority of any testamentary disposition concerning the amendment of the foundation's objects.
b100 Having heard the board of trustees, the supervisory authority may make minor amendments to the foundation charter provided these are objectively justified and do not impair the rights of any third party.
Art. 87
1 Family and ecclesiastical foundations are not subject to supervision, unless otherwise provided by public law.
1bis
They are exempt from the duty to appoint external auditors.101 2
Private law disputes are decided by the courts.
Art. 88
102 1 The competent federal or cantonal authority shall dissolve the foundation on application or of its own accord if:
1. its objects have become unattainable and the foundation cannot be maintained by modifying its charter; or
2. its objects have become unlawful or immoral.
2
Family and ecclesiastical foundations shall be dissolved by court order.
Art. 89
103 1 Any interested party may file an application or bring an action for the dissolution of a foundation.
100 Inserted by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
101 Inserted by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
102 Amended by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
103 Amended by No I of the FA of 8 Oct. 2004 (Law of Foundations), in force since 1 Jan. 2006 (AS 2005 4545; BBl 2003 8153 8191).
III. Minor
amendments to
the charter
E. Family and
ecclesiastical
foundations
F. Dissolution
and deletion
from the register I. Dissolution by the competent
authority
II. Right to apply
for dissolution,
deletion from the
register
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210
2
Dissolution must be reported to the commercial registrar so that the entry may be deleted.
a104 1 The following additional provisions apply to employee benefits schemes established in accordance with Art. 331 of the Code of Obligations106 in the form of a foundation.107 2 The foundation's governing bodies must furnish the beneficiaries with the necessary information concerning the foundation's organisation, activities and assets.
3
If employees pay contributions into the benefits scheme, they are entitled to participate in its administration at least in proportion to their contributions; wherever possible, the employees must elect their representative from among their employer's personnel.108 4 …109
5
The beneficiaries may sue the foundation for the distribution of benefits if they have paid contributions into it or if according to the foundation's regulations they have a legal entitlement to such benefits.
6
For employee benefits schemes providing old age, survivors' and invalidity pensions which are subject to the Vested Benefits Act of 17 December 1993110 (VBA), the provisions of the Federal Act of 25 June 1982 on Occupational Old Age, Survivors' and Invalidity Pension Provision (OPA)111 on the following matters apply:112 1.113 the definition and principles of occupational pension arrangements and the insurable salary or income (Art. 1, 33a and 33b),
104 Inserted by No II of the FA of 21 March 1958, in force since 1 July 1958 (AS 1958 379; BBl 1956 II 825). Originally Art. 89bis, until the entry into force of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
105 Amended by No II Art. 2 No 1 of the FA of 25 June 1971, in force since 1 Jan. 1972 (AS 1971 1465; BBl 1967 II 241).
106 SR 220
107 Amended by No II Art. 2 No 1 of the FA of 25 June 1971, in force since 1 Jan. 1972 (AS 1971 1465; BBl 1967 II 241).
108 Amended by No II Art. 2 No 1 of the FA of 25 June 1971, in force since 1 Jan. 1972 (AS 1971 1465; BBl 1967 II 241).
109 Repealed by No III of the FA of 21 June 1996, with effect from 1 Jan. 1997 (AS 1996 3067; BBl 1996 I 564 580).
110 SR
831.42
111 SR
831.40
112 Amended by No I of the FA of 25 Sept. 2015 (Employee Benefits Schemes), in force since 1 April 2016 (AS 2016 935; BBl 2014 6143 6649).
113 Amended by No II 1 of the FA of 11 Dec. 2009 (Measures to Facilitate the Employment of Older Persons), in force since 1 Jan. 2011 (AS 2010 4427; BBl 2007 5669).
G. Employee
benefits
schemes105
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2.114 the requirement of being subject to OASI (Art. 5 para. 1), 3. the beneficiaries in the case of survivors' benefits (Art. 20a), 3a.115 the adjustment of the invalidity pension following the equitable division of occupational pensions (Art. 24 para. 5),
3b.116 the provisional continuation of insurance and of the entitlement to benefits on the reduction or termination of the invalidity pension (Art. 26a),
4.117 the adjustment of plan benefits to inflation (Art. 36 para. 2-4), 4a.118 the agreement on a lump sum payment (Art. 37a), 5. the limitation period for entitlements and the safekeeping of insurance documents (Art. 41), 5a.119 the use, processing and disclosure of the OASI number for the Old Age and Survivors' Insurance (Art. 48 para. 4, Art.
85a lit. f and Art. 86a para. 2 lit. bbis) 6. liability
(Art.
52),
7.120
the licensing and duties of the supervisory bodies (Art. 52a-52e), 8.121 the integrity and loyalty of the persons responsible, transactions with close associates and conflicts of interest
(Art. 51b, 51c and 53a), 9. partial or total liquidation (Art. 53b-53d), 10.122 termination of contracts (Art. 53e), 11. the guarantee fund (Art. 56 para. 1 lit. c and para. 2-5, Art. 56a, 57 and 59), 12.123 supervision and oversight (Art. 61-62a and 64-64c), 114 Amended by No I of the FA of 25 Sept. 2015 (Employee Benefits Schemes), in force since 1 April 2016 (AS 2016 935; BBl 2014 6143 6649).
115 Inserted by Annex No 2 of the FA of 18 March 2011 (6th InvI Revision, first set of measures (AS 2011 5659; BBl 2010 1817). Amended by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
116 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
117 Amended by Annex No 1 of the FA of 18 June 2004, in force since 1 Jan. 2005 (AS 2004 4635; BBl 2003 6399).
118 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
119 Inserted by Annex No 1 of the FA of 23 June 2006 (New OASI Insurance Number), in force since 1 Dec. 2007 (AS 2007 5259; BBl 2006 501).
120 Amended by No II 1 of the FA of 19 March 2010 (OPA Structural Reform), in force since 1 Jan. 2012 (AS 2011 3393; BBl 2007 5669).
121 Amended by No II 1 of the FA of 19 March 2010 (OPA Structural Reform), in force since 1 Jan. 2012 (AS 2011 3393; BBl 2007 5669).
122 Amended by No II of the FA of 20 Dec. 2006 (Change of Employee Benefits Scheme), in force since 1 May 2007 (AS 2007 1803 1805; BBl 2005 5941 5953).
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13.124 … 14.125 financial security (Art. 65 para. 1, 3 and 4, Art. 66 para. 4, Art. 67 and Art. 72a-72g), 15. transparency (Art. 65a), 16. reserves (Art. 65b), 17. insurance contracts between occupational benefits schemes and insurance institutions (Art. 68 para. 3 and 4), 18. asset management (Art. 71), 19. legal recourse (Art. 73 and 74), 20. criminal provisions (Art. 75-79), 21. buy-in (Art. 79b), 22. insurable salary and income (Art. 79c), 23. provision of information to insured persons (Art. 86b).126 7
For employee benefits schemes providing old age, survivors' and invalidity pensions but which are not subject to the VBA, such as employer-sponsored welfare funds with discretionary benefits and financing foundations, only the following provisions of the OPA apply: 1. the requirement of being subject to OASI (Art. 5 para. 1); 2. the use, processing and disclosure of the OASI number (Art.
48 para. 4, 85a let. f and 86a para. 2 let. bbis); 3. liability
(Art.
52);
4. the licensing and duties of the auditors (Art. 52a, 52b and 52c para. 1 let. a-d and g, 2 and 3); 5. the integrity and loyalty of the persons responsible, transactions with close associates and conflicts of interest (Art. 51b, 51c and 53a);
6. total liquidation (Art. 53c); 7. supervision and oversight (Art. 61-62a and 64-64b); 123 Amended by No II 1 of the FA of 19 March 2010 (OPA Structural Reform), in force since 1 Jan. 2012 (AS 2011 3393; BBl 2007 5669).
124 Repealed by No. II 1 of the FA of 19 March 2010 (OPA Structural Reform), with effect from 1 Jan. 2012 (AS 2011 3393; BBl 2007 5669).
125 Amended by No II 1 of the FA of 17 Dec. 2010 (Funding of benefits schemes for public corporations), in force since 1 Jan. 2012 (AS 2011 3385; BBl 2008 8411).
126 Inserted by Annex No 1 of the FA of 25 June 1982 on Old Age, Survivors' and Disability Insurance (AS 1983 797; BBl 1976 I 149). Amended by Annex No 1 of the FA of 3 Oct.
2003 (1st revision of OPA), No. 6, 7, 10-12, 14 (with the exception of Art. 66 para. 4), 15, 17-20 and 23 in force since 1 April 2004, No. 3-5, 8, 9, 13, 14 (Art. 66 para. 4) and 16 in force since 1 Jan. 2005, No. 1, 21 and 22 in force since 1 Jan. 2006 (AS 2004 1677; BBl 2000 2637).
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8. legal recourse (Art. 73 and 74); 9. criminal provisions (Art. 75-79); 10. tax treatment (Art. 80, 81 para. 1 and 83).127 8
For employee benefits schemes under paragraph 7, the following provisions also apply: 1. they manage their assets so that security, an adequate yield on investments and the required liquidity for their tasks are guaranteed.
2. the supervisory authority shall rule on partial liquidation matters related to employer-sponsored welfare funds with discretionary benefits at the request of the foundation board.
3. they shall respect the principles of equal treatment and fairness mutatis mutandis.128 Title Twobis:129 130 Collective Assets
b 1 In the case of a public collection for charitable purposes, if no arrangements have been made for the management or use of the collective assets, the competent authority shall take the required measures.
2
It may appoint an administrator for the collective assets or allocate the assets to an association or a foundation with objects that are as similar as possible.
3
The administrator is subject, mutatis mutandis, to the regulations on deputyships in context of adult protection.
c 1 The canton in which the main part of the collective is managed has jurisdiction.
2
Unless the canton provides otherwise, the authority that supervises the foundations has jurisdiction.
127 Inserted by No I of the FA of 25 Sept. 2015 (Employee Benefits Schemes), in force since 1 April 2016 (AS 2016 935; BBl 2014 6143 6649).
128 Inserted by No I of the FA of 25 Sept. 2015 (Employee Benefits Schemes), in force since 1 April 2016 (AS 2016 935; BBl 2014 6143 6649).
129 Corrected by the Federal Assembly Drafting Committee (Art. 58 Abs. 1 ParlA; SR 171.10).
130 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
A. No management
B. Jurisdiction
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Part Two: Family Law Division One: Marital Law Title Three:131 Marriage Chapter One: Engagement
Art. 90
1 Engagement is constituted by mutual promises to marry.
2
Minors incur no obligation through betrothal without the consent of their legal representative.132 3 Engagement does not give rise to any actionable obligation to marry.
Art. 91
1 If the engagement is ended, the engaged parties may demand the return of gifts made to each other, with the exception of the usual occasional gifts, unless the engagement has ended as a result of death.
2
Where such gifts are no longer at hand, restitution is subject to the provisions governing unjust enrichment.
Art. 92
If one of the engaged couple has in good faith incurred expense in
anticipation of the marriage ceremony and the engagement is then ended, that party may claim a reasonable contribution from the other where this is not inequitable in the overall circumstances.
Art. 93
Claims arising from the engagement are subject to a time limit of one
year from the ending of the engagement.
Chapter Two: Requirements for Marriage
Art. 94
1 To be able to marry, the prospective spouses must have reached 18 years of age and have the capacity of judgement.
2
…133
131 Amended by No I 2 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
132 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
A. Betrothal
B. Ending the
engagement I. Gifts II. Duty to
contribute
III. Limitation
A. Capacity to
marry
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Art. 95
1 Marriage between lineal relatives and between siblings or halfsiblings, whether related to each other by parentage or adoption, is prohibited.135 2
Adoption does not remove the impediment to marriage constituted by kinship between the adopted child and his issue on the one hand and his adoptive family on the other.
Art. 96
A person wishing to remarry must prove that any previous marriage
has been annulled or dissolved.
Chapter Three: Preparation and Wedding Ceremony
Art. 97
1 The wedding ceremony takes place in the presence of the civil registrar after the preparatory procedure has been taken.
2
The engaged couple may marry in the civil register district of their choice.
3
No religious wedding ceremony is permitted prior to the civil ceremony.
a136 1 The civil registrar shall not consider a request for marriage if the bride or groom clearly has no intention of living together but wishes to circumvent the provisions on the admission and residence of foreign nationals.
2
The civil registrar shall grant a hearing to the prospective spouses and may obtain information from other authorities or third parties.
Art. 98
1 The preparatory procedure is carried out at the civil register office at the domicile of the bride or groom at their request.
133 Repealed by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), with effect from 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
134 Amended by Annex No. 8 of the Civil Partnerships Act of 18 June 2004, in force since 1 Jan. 2006 (AS 2005 5685; BBl 2003 1288).
135 Amended by Annex No. 8 of the Civil Partnerships Act of 18 June 2004, in force since 1 Jan. 2006 (AS 2005 5685; BBl 2003 1288).
136 Inserted by Annex No II 4 of the FA of 16 Dec. 2005 on Foreign Nationals, in force since 1 Jan. 2008 (AS 2007 5437; BBl 2002 3709).
B. Impediments I. Kinship134 II. Previous
marriage
A. General
principles
Abis. Circumvention of the
legislation on
foreign nationals
B. Preparatory
procedure I. Request
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2
They must appear in person. If they may show that they clearly cannot be required to do so, the preparatory procedure may be carried out in writing.
3
They must furnish documentary proof of identity and personally declare at the civil register office that they satisfy the legal requirements for marriage; they must also produce any necessary consent.
4
Engaged couples who are not Swiss citizens must prove during the preparatory procedure that they are lawfully resident in Switzerland.137
Art. 99
1 The civil register office verifies that: 1. the request has been duly submitted; 2. the identity of the engaged couple has been established; and 3.138 the requirements for marriage are satisfied, and in particular whether there are any circumstances that suggest that the request clearly does not reflect the free will of the engaged couple.
2
Provided these requirements are fulfilled, the civil register office informs the betrothed parties that the preparatory procedure has been completed and of the legally prescribed time limits for marriage.
3
After consulting the engaged couple and in conformity with cantonal regulations, the civil register office sets the date of the wedding ceremony or, upon request, authorises that it may be conducted in another civil register district.
4
The civil register office must inform the competent authority of the identity of any engaged couple who have not proven that they are lawfully resident in Switzerland.139
Art. 100
1 The wedding ceremony may take place no earlier than ten days and no later than three months following notification of completion of the preparatory procedure.
2
If one of the engaged couple is close to death and there is reason to fear that observing the ten-day minimum period might render the wedding ceremony impossible, the civil registrar may, subject to 137 Inserted by No I of the FA of 12 June 2009 (Prevention of Marriages in the event of Unlawful Residence), in force since 1 Jan. 2011 (AS 2010 3057; BBl 2008 2467 2481).
138 Amended by No I 3 of the FA of 15 June 2012 on Measures against Forced Marriages, in force since 1 July 2013 (AS 2013 1035; BBl 2011 2185).
139 Inserted by No I of the FA of 12 June 2009 (Prevention of Marriages in the event of Unlawful Residence), in force since 1 Jan. 2011 (AS 2010 3057; BBl 2008 2467 2481).
II. Conduct and
completion of
the preparatory
procedure
III. Time limits
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medical confirmation, reduce the period or conduct the wedding ceremony immediately.
Art. 101
1 The wedding ceremony takes place at the wedding venue of the civil register district chosen by the engaged couple.
2
Where the preparatory procedure was conducted in a different civil register district, the engaged couple must produce a marriage licence.
3
If the engaged couple show that they cannot reasonably be required to appear at the official venue, the wedding may take place at another location.
Art. 102
1 A wedding is a public ceremony that takes place in the presence of two adult witnesses who are capable of judgement.140 2 The civil registrar asks the bride and groom individually whether each wishes to marry the other.
3
If both answer in the affirmative, they are pronounced married by mutual consent.
Art. 103
The Federal Council and, within the scope of their powers, the cantons
shall enact the necessary implementing provisions.
Chapter Four: Annulment of Marriage
Art. 104
A marriage contracted before a civil registrar may be annulled only on
one of the grounds provided in this chapter.
Art. 105
Grounds for annulment are: 1. that one of the spouses141 was already married at the time of the wedding and the previous marriage had not been dissolved by divorce or by the death of the previous spouse; 140 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
141 Footnote relevant to German text only.
C. Wedding
ceremony I. Venue
II. Form
D. Implementing
provisions
A. General
principle
B. Annulment
not subject to a
time limit I. Grounds
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2. that one of the spouses lacked capacity of judgement at the time of the wedding and has not regained such capacity since; 3.142 that the marriage was prohibited due to kinship; 4.143 one of the spouses has no intention of living with the other, but wishes to circumvent the provisions on the admission and residence of foreign nationals; 5.144 a spouse has not married of his or her own free will; 6.145 one of the spouses is a minor, unless the continuation of the marriage is in the overriding interest of this spouse.
Art. 106
1 An action for annulment is brought ex officio by the competent cantonal authority at the domicile of the spouses; in addition, any interested party is entitled to bring such action. Provided this is compatible with their duties, the federal and cantonal authorities shall contact the authority competent for the action if they have reason to believe that there are grounds for annulment.146 2 If the marriage has been otherwise dissolved, the authority may no longer seek an annulment ex officio; however, any interested party may seek a declaration of annulment.
3
An action for annulment may be brought at any time.
Art. 107
A spouse may seek a declaration of annulment if he or she: 1. temporarily lacked capacity of judgement at the time of the wedding;
2. married in error, whether because he or she did not wish to marry at all or did not wish to marry the other person; 3. contracted the marriage because he or she was intentionally deceived with regard to essential personal attributes of the other spouse; 142 Amended by No. 8 of the Civil Partnerships Act of 18 June 2004, in force since 1 Jan. 2006 (AS 2005 5685; BBl 2003 1288).
143 Inserted by Annex No II 4 of the FA of 16 Dec. 2005 on Foreign Nationals, in force since 1 Jan. 2008 (AS 2007 5437; BBl 2002 3709).
144 Inserted by No. I 3 of the FA of 15 June 2012 on Measures against Forced Marriages, in force since 1 July 2013 (AS 2013 1035; BBl 2011 2185).
145 Inserted by No. I 3 of the FA of 15 June 2012 on Measures against Forced Marriages, in force since 1 July 2013 (AS 2013 1035; BBl 2011 2185).
146 Last sentence inserted by No I 3 of the FA of 15 June 2012 on Measures against Forced Marriages, in force since 1 July 2013 (AS 2013 1035; BBl 2011 2185).
II. Action for
annulment
C. Annulment
subject to a time
limit I. Grounds
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4.147 …
Art. 108
1 An action for annulment must be brought within six months of learning of the grounds for annulment or of the date on which the threat ceased, but in any event within five years of the wedding.
2
The right to bring an action for annulment does not pass to heirs; however, an heir may continue an action already brought.
Art. 109
1 A marriage does not become invalid until a court has declared it annulled; prior to such judgment it has all the effects of a valid marriage with the exception of claims under inheritance law, which in any event the surviving spouse loses.
2
The provisions governing divorce apply mutatis mutandis to the effects of a court declaration of annulment on the spouses and their children.
3
The presumption of paternity in favour of the husband does not apply if the marriage is annulled because it served to circumvent the provisions on the admission and residence of foreign nationals.148
Art. 110
149
Art. 111
151 1 Where the spouses jointly request divorce and submit a comprehensive agreement on the consequences of the divorce along with any necessary documents and with joint applications in respect of the children, the court shall hear the spouses both separately and together.
The hearing may comprise two or more sessions.
147 Repealed by No I 3 of the FA of 15 June 2012 on Measures against Forced- Marriages, with effect from 1 July 2013 (AS 2013 1035; BBl 2011 2185).
148 Inserted by Annex No II 4 of the FA of 16 Dec. 2005 on Foreign Nationals, in force since 1 Jan. 2008 (AS 2007 5437; BBl 2002 3709).
149 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
150 Amended by No I 3 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
151 Amended by No I of the FA of 25 Sept. 2009 (Reflection Period in Divorce Proceedings by joint Application), in force since 1 Feb. 2010 (AS 2010 281; BBl 2008 1959 1975).
II. Action for
annulment
D. Effects of
judgment
A. Divorce by
joint request I. Comprehensive agreement
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2
If the court is persuaded that desire for divorce and the agreement are the product of free will and careful reflection and that the agreement with the applications in respect of the children may be approved, the court shall issue the divorce decree.
Art. 112
1 The spouses may jointly request divorce and ask the court to decide matters on which they cannot reach agreement.
2
As in the case of comprehensive agreement, the court shall hear the parties on those consequences of the divorce on which they have reached agreement and on their request that the remaining consequences be decided by the court.
3
…152
Art. 113
153
Art. 114
154 A spouse may petition for divorce if, at the time the petition is filed or
at the time the divorce request is replaced by a divorce petition, the spouses have lived apart for at least two years.
Art. 115
155 Prior to the expiry of the two-year period, a spouse may petition for
divorce if the marriage has irretrievably broken down for compelling reasons for which he or she is not responsible.
Art. 116
156
153 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
154 Amended by No I of the FA of 19 Dec. 2003 (Separation Period in Divorce Law), in force since 1 June 2004 (AS 2004 2161; BBl 2003 3927 5825).
155 Amended by No I of the FA of 19 Dec. 2003 (Separation Period in Divorce Law), in force since 1 June 2004 (AS 2004 2161; BBl 2003 3927 5825).
156 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
II. Partial
agreement
B. Divorce at the
petition of one
spouse I. After living apart
II. Irretrievable
breakdown
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Chapter Two: Separation
Art. 117
1 Spouses may petition for a separation decree subject to the same requirements as apply to divorce.
2
…157
3
The right to petition for divorce is unaffected by the separation decree.
Art. 118
1 By operation of the law, the separation decree implements the marital property separation of property regime.
2
Otherwise, the provisions governing measures for the protection of the marital union apply mutatis mutandis.
Chapter Three: Consequences of Divorce
Art. 119
158 1 A spouse who has changed his or her surname on marriage retains that surname following divorce; he or she may at any time declare before the civil registrar the wish to revert to the name by which he or she was known prior to the marriage.
Art. 120
1 The provisions of marital property law apply to the division of marital property.
2
Divorced spouses have no rights of inheritance in relation to each other and may not make claims based on testamentary dispositions made before their divorce proceedings were made pending.
Art. 121
1 If a spouse must remain in the family home because of the children or for other compelling reasons, the court may transfer the rights and obligations under the tenancy agreement to that spouse provided this is not inequitable for the other.
157 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
158 Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
A. Requirements
and procedure
B. Effects of
separation
A. Civil status of
divorced spouses
B. Marital
property law and
inheritance law
C. Family home
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2
The previous tenant is jointly and severally liable for payment of the rent up to the date on which the tenancy ends or may be terminated pursuant to the tenancy agreement or by law, but for a maximum period of two years; if an action is brought to recover rent due, he or she is entitled to set off the amount paid in instalments equal to the amount of the monthly rent against any maintenance payments owed to the other spouse.
3
If the home belongs to the family of one of the spouses, the court may, on the same conditions, grant the other spouse a right of residence for a fixed term in return for reasonable compensation or set-off against maintenance payments. Where new and compelling reasons so require, such right of residence may be restricted or revoked.
Art. 122
159 In the event of divorce, any occupational pension assets accrued
during the marriage up to the point at which divorce proceedings commence are divided equitably.
Art. 123
160 1 Termination benefits including vested benefits and early withdrawals for purchasing owner-occupied property are divided equally.
2
Paragraph 1 does not apply to one-off contributions from individual property in accordance with the law.
3
The termination benefits to be divided are calculated on the basis of Articles 15-17 and 22a or 22b of the Vested Benefits Act of 17 December 1993161.
Art. 124
162 1 If, at the point at which divorce proceedings commence, a spouse is drawing an invalidity pension prior to the statutory retirement age, the amount to which he or she would be entitled under Article 2 paragraph 1ter of the Vested Benefits Act of 17 December 1993163 following cancellation of the invalidity pension counts as the termination benefits.
159 Amended by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
160 Amended by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
161 SR
831.42
162 Amended by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
163 SR
831.42
D. Occupational
pensions I. Principle II. Equitable
division of
termination
benefits
III. Equitable
division of
invalidity
pension prior to
statutory
retirement age
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2
The provisions on the equitable division of termination benefits apply mutatis mutandis.
3
The Federal Council determines in which cases the amount under paragraph 1 may not be applied in the division because there has been a reduction due to over-compensation.
a164 1 If, at the point at which divorce proceedings commence, a spouse is drawing an invalidity pension after the statutory retirement age or drawing a retirement pension, the court decides at its own discretion how the pension is to be divided. In doing so it primarily takes into account the duration of the marriage and the pension requirements of each spouse.
2
The share of the pension awarded to the spouse entitled thereto is converted into a life-long pension. This is paid to the entitled spouse by the liable spouse's occupational pension fund or is transferred to the entitled spouse's own occupational pension fund.
3
The Federal Council regulates: 1. the actuarial conversion of the share of the pension into a lifelong pension;
2. the procedure in cases in which the retirement benefits are postponed or the invalidity pension is reduced due to overcompensation.
b165 1 The spouses may, in an agreement on the consequences of the divorce, agree not to divide the assets equally or not to divide them at all if there are sufficient retirement pension and invalidity pension funds otherwise.
2
The court may award the entitled spouse less than half of the termination benefits or rule that they should not be divided if good cause exists. Good cause exists above all when equal division would be unreasonable:
1. in view of the division of marital property or the economic circumstances following divorce; 2. in view of the pension requirements, in particular with regard to the difference in age between the spouses.
164 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
165 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
IV. Equitable
division in the
case of invalidity
pensions after
statutory
retirement age
and in the case
of retirement
pensions
V. Exceptions
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3
The court may award the entitled spouse more than half of the termination benefits if he or she cares for joint children following the divorce and the liable spouse continues to have sufficient retirement and invalidity pension assets.
c166 1 The spouses' mutual entitlements to termination benefits or a share of a pension are offset. The pension entitlement is offset before the share of the pension awarded to the entitled spouse is converted into a life-long pension.
2
Termination benefits may only be offset against a share of a pension if the spouses and the occupational pension institutions agree.
d167 If, having considered the pension requirements of both spouses, an equitable division of occupational pension assets is unreasonable, the liable spouse shall owe the entitled spouse a lump sum payment.
e168 1 If the equitable division of pension fund assets is not possible, the liable spouse shall owe the entitled spouse adequate compensation in the form of a lump sum payment or as a pension.
2
A Swiss judgment may be amended at the request of the liable spouse if pension entitlements existing abroad have been offset by adequate compensation pursuant to paragraph 1 and such pension entitlements are then divided up in a foreign decision that is binding on the foreign party liable to pay pension contributions.
Art. 125
1 If a spouse cannot reasonably be expected to provide for his or her own maintenance, including an appropriate level of retirement provision, the other spouse must pay a suitable contribution.
2
In deciding whether such a contribution is to be made and, if so, in what amount and for how long, the following factors in particular must be considered: 1. the division of duties during the marriage; 166 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
167 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
168 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
VI. Offset of
mutual entitlements
VII. Unreasonableness
VIII. Impossibility
E. Post-marital
maintenance I. Requirements
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2. the duration of the marriage; 3. the standard of living during the marriage; 4. the age and health of the spouses; 5. the income and assets of the spouses; 6. the extent and duration of child care still required of the spouses;
7. the vocational training and career prospects of the spouses and the likely cost of reintegration into working life; 8. expectancy of federal old age and survivor's insurance benefits and of occupational or other private or state pensions, including the expected proceeds of any division of withdrawal benefits.
3
Exceptionally, a maintenance contribution may be denied or reduced if it would clearly be inequitable, particularly because the spouse otherwise entitled to receive such contribution: 1. has grossly neglected his or her duty to contribute to the maintenance of the family; 2. has wilfully brought about his or her own indigence; 3. has committed a serious criminal offence against the other spouse or a person close to him or her.
Art. 126
1 The court shall fix an amount to be paid periodically by way of maintenance contribution and set the date on which the duty of maintenance commences.
2
Where justified in specific circumstances, a lump sum settlement may be ordered instead of regular payments.
3
The court may attach conditions to the maintenance contribution.
Art. 127
The spouses may wholly or in part exclude any alteration of the regular maintenance payments stipulated in the agreement.
Art. 128
The court may direct that the maintenance contribution will automatically increase or decrease depending on specified changes in the cost of living.
II. Modalities of
maintenance
contributions
III. Regular
payments 1. Special terms 2. Adjustment
for inflation
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Art. 129
1 In the event of a substantial and enduring change in circumstances, the periodic maintenance payments may be reduced, cancelled or suspended for a certain time; an improvement in the circumstances of the party entitled to maintenance may be taken into account only if the payments stipulated in the divorce decree provided sufficient maintenance.
2
The party entitled to maintenance may request that the payments be adjusted in line with future inflation if the income of the other party has increased unexpectedly since the divorce.
3
Within five years of the divorce, the party entitled to maintenance may request that payments be ordered or increased provided the divorce decree states that it was not possible at that time to order sufficient maintenance payments and provided the economic circumstances of the party obliged to pay maintenance have since improved.
Art. 130
1 The duty to pay maintenance expires on the death of either the receiving party or the paying party.
2
Unless otherwise agreed, it likewise expires on the remarriage of the party entitled to receive maintenance.
Art. 131
169 1 Where the liable party fails to pay maintenance, an official agency designated by cantonal law shall on request, in an appropriate way and usually without charge, assist the party entitled to maintenance to enforce his or her claims.
2
The Federal Council determines the terms of enforcement assistance.
a170 1 Public law may provide for advance payments to be made should the liable person fail to make the necessary maintenance payments.
2
If the state authority makes maintenance payments to the entitled person, the maintenance entitlement with all rights is assigned to the state authority.
169 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
170 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
3. Adjustment by
court order
4. Expiry by law
IV. Enforcement 1. Enforcement assistance
2. Advance
payments
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Art. 132
1 If the party obliged to pay maintenance fails to do so, the court may order his debtors to make payment in whole or in part to the party entitled to maintenance.
2
If the party obliged to pay maintenance persistently fails to do so, or if there are grounds to suspect that said party is preparing to abscond or is dissipating or concealing his assets, the court may order him to post appropriate security for future maintenance contributions.
Art. 133
172 1 The court regulates parental rights and obligations in accordance with the provisions on the legal effects of the parent-child relationship.
In particular it regulates: 1. parental
responsibility;
2. residence; 3. contact (Art. 273) or the sharing of parenting duties; and 4. child maintenance contributions.
2
It shall consider all circumstances important to the child's best interests. It shall take account of a joint proposal by the parents and, if feasible, the opinion of the child.
3
It may order that the child maintenance contribution continue to be paid after the child reaches the age of majority.
Art. 134
1 At the request of either parent, the child or the child protection authority, new arrangements for parental responsibility shall be made by the child protection authority provided this is in the child's best interests due to a substantial change in circumstances.
2
The requirements for the modification of other parental rights andobligations are governed by the provisions on the effects of the parentchild relationship.173 3
If the parents agree, the child protection authority reassesses parental responsibility, residence and approves a child support agreement. In 171 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
172 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
173 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
3. Directions to
debtors and
posting security171
F. Children I. Parental rights and obligations
II. Change of
circumstances
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the other cases, the court competent to modify the divorce decree decides.174 4 If the court is required to decide on the modification of parental responsibility, residence or the child maintenance contribution for a minor child, it shall if necessary also reassess contact or sharing of parenting duties; in the other cases, the child protection authority shall decide on the modification of contact or sharing of parenting duties.175 Art. 135-149176 Art. 150-158 Repealed Title Five:177 General Effects of Marriage
Art. 159
1 The wedding ceremony binds the spouses in marital union.
2
They mutually undertake to strive to safeguard the interests of the marital union and to care jointly for the children.
3
They owe each other loyalty and support.
Art. 160
178 1 Each spouse retains his or her surname.
2
However, the prospective spouses may declare to the civil registrar that they wish bear the surname of the bride or the groom as the family surname.
3
If the prospective spouses retain their surnames, they decide which of the surnames their children will bear. In justified cases, the civil registrar may relieve the prospective spouses of this obligation.
174 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
175 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
176 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
177 Amendment of Title Five in accordance with No I 1 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191). See also Art. 8-8b of the Final Title below.
178 Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
A. Marital union;
rights and duties
of spouses
B. Surname
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Art. 161
179 Each spouse retains his or her cantonal and communal citizenship.
Art. 162
The spouses jointly decide where to establish the marital home.
Art. 163
1 The spouses jointly provide for the proper maintenance of the family, each according to his or her ability.
2
They agree on the contributions each of them will make, notably by providing money, looking after the household, caring for the children or supporting the other's career or business.
3
In so doing they take due account of the needs of the marital union and of their own personal circumstances.
Art. 164
1 A spouse who looks after the household, cares for the children or supports the career or business of the other spouse is entitled to receive from the latter a reasonable allowance for his or her own personal use.
2
When determining said allowance, account must be taken of the personal resources of the receiving spouse and the need to provide conscientiously for the family, career and business.
Art. 165
1 Where the contribution made by one spouse to the other's career or business is significantly greater than required in the light of the latter's contribution to the maintenance of the family, he or she is entitled to reasonable compensation.
2
The same applies if a spouse has contributed significantly more of his or her own income or assets to the maintenance of the family than he or she was obliged to contribute.
3
However, a spouse is not entitled to compensation if such extraordinary contribution was made under a work, loan or partnership agreement or on the basis of some other legal relationship.
179 Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
C. Cantonal and
communal
citizenship
D. Marital home
E. Maintenance
of the family I. In general II. Allowance for
personal use
III. Extraordinary contribu-
tions by one
spouse
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210
Art. 166
1 While living together under the same roof, both spouses represent the marital union with regard to the day-to-day needs of the family.
2
A spouse may represent the marital union with regard to the other needs of the family only if: 1. authorised so to do by the other spouse or by court order; 2. the interests of the marital union brook no delay and the other spouse is unable to consent due to illness, absence or other similar reasons.
3
Each spouse is personally liable for his or her own actions and, to the extent that these do not exceed his or her powers of representation in a manner apparent to third parties, also renders the other spouse jointly and severally liable for such actions.
Art. 167
In the choice and pursuit of his or her career or business, each spouse
must have due regard to the other and to the welfare of the marital union.
Art. 168
Each spouse may enter into transactions with the other or with third
parties unless the law provides otherwise.
Art. 169
1 A spouse may terminate a tenancy agreement, alienate the family home or limit the rights in respect of the family home by other transactions only with the express consent of the other.
2
If the spouse cannot obtain such consent or it is withheld without good cause, he or she may petition the court.
Art. 170
1 Each spouse has the right to demand information from the other concerning his or her income, assets and debts.
2
At the request of one spouse, the court may order the other spouse or a third party to furnish the information required and to produce the necessary documents.
3
This does not apply to any information held by lawyers, solicitors, doctors, clergy and their auxiliary staff which is subject to professional confidentiality.
F. Representation of the
marital union
G. Spouses'
career or
business
H. Transactions
by the spouses I. In general II. Family home
J. Duty to inform
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Art. 171
The cantons must ensure that spouses experiencing marital problems
may seek help individually or jointly from marriage guidance or family counselling agencies.
Art. 172
1 If a spouse fails to fulfil his or her duties to the family or if the spouses disagree on matters of importance to the marital union, they may apply jointly or separately to the court for mediation.
2
The court reminds the spouses of their duties and attempts to settle their differences; if the spouses consent, experts may be consulted or they may be referred to a marriage guidance or family counselling agency.
3
If necessary, at the request of one spouse the court will take the steps envisaged by law. The provision governing the protection of the person from violence, threats or harassment applies mutatis mutandis.180
Art. 173
1 At the request of one spouse, the court determines the amounts to be paid for the maintenance of the family.
2
Likewise, at the request of one spouse, it determines the allowance payable to the spouse who looks after the household, cares for the children or supports the other's career or business.
3
Payments may be claimed for the future and for one year preceding the request.
Art. 174
1 If a spouse exceeds his or her power to represent the marital union or proves incapable of exercising it, at the other spouse's request the court may revoke such power in whole or in part.
2
The spouse making such request may inform third parties of the revocation only by communications in person.
3
The revocation is effective towards third parties acting in good faith only if it has been made public by order of the court.
180 Second
sentence
inserted by No I of the FA of 23 June 2006 (Protection of the Personality against Violence, Threats or Harassment), in force since 1 July 2007 (AS 2007 137; BBl 2005 6871 6897).
K. Protection of
the marital union I. Counselling agencies
II. Court
measures 1. In general 2. While living
together a. Financial contributions
b. Revocation of
powers of
representation
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210
Art. 175
A spouse is entitled to suspend the joint household for as long as his
or her personality rights or financial security or the welfare of the family are seriously endangered by living together.
Art. 176
1 If the suspension of the joint household is justified, at the request of one spouse the court will: 1.181 determine the maintenance paid to any children and the other spouse;
2. issue directions on the use of the home and the household effects;
3. order a separation of property where justified in the circumstances.
2
A spouse may also make such request if living together is impossible, in particular because the other spouse refuses to do so without good cause.
3
If the spouses have minor children, the court must take the necessary steps in accordance with the provisions governing the legal effects of the parent-child relationship.182
a183
The provisions governing enforcement assistance and advance payments on divorce and consequent to the parent-child relationship apply.
Art. 177
If a spouse fails to fulfil his or her duty to maintain the family, the
court may order his or her debtors to make payment in full or in part to the other spouse.
Art. 178
1 To the extent required to ensure the family's financial security or fulfilment of a financial obligation arising from the marital union, at 181 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
182 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
183 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
184 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
3. Suspension of
joint household a. Grounds b. Arrangements
for living apart
4. Enforcement a. Enforcement assistance and
advance
payments
b. Directions to
debtors184
5. Restriction of
power to dispose
of assets
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210
the request of one spouse the court may make the power to dispose of certain assets conditional on its consent.
2
The court orders the appropriate protective measures.
3
If it prohibits a spouse from disposing of land it must have a note to this effect recorded in the land register.
Art. 179
185 1 If there is a change in circumstances, at the request of either spouse the court shall modify the measures or revoke the same if they are no longer justified. The provisions on a change of circumstances in divorce cases apply mutatis mutandis.187 2 If the spouses resume living together, the measures ordered in connection with living apart lapse, with the exception of the separation of property and the child protection measures.
Art. 180
188 Repealed Title Six:189 Marital Property Law Chapter One: General Provisions Art. 181
Spouses are subject to the provisions governing participation in acquired property provided they have not agreed otherwise in a marital agreement and provided no extraordinary marital property regime has come into effect.
Art. 182
1 A marital agreement may be concluded before or after the wedding.
2
The prospective spouses or the spouses may choose, set aside or modify their marital property regime only within the limits of the law.
185 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
186 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
187 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
188 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
189 Amended of Title Six in accordance with No I 1 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191). See also Art. 9-11a of the Final Title below.
6. Change of
circumstances186
A. Ordinary
property regime
B. Marital
agreement I. Choice of regime
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210
Art. 183
1 A person wishing to enter into a marital agreement must have capacity of judgement.
2
Minors, or adults subject to a deputyship that covers the conclusion of a marital agreement require the consent of their legal representative.190
Art. 184
The marital agreement must be executed as a public deed and signed
by the parties and, where applicable, by the legal representative.
Art. 185
1 At the request of one spouse, the court shall order a separation of property where there is good cause to do so.
2
In particular, good cause exists: 1. if the other spouse is overindebted or his or her share of the common property has been distrained; 2. if the other spouse is endangering the interests of the applicant or of the marital union; 3. if the other spouse unreasonably withholds the consent required for the disposal of common property;
4. if the other spouse refuses to provide the applicant with information concerning his or her income, assets and debts or concerning common property;
5. if the other spouse permanently lacks capacity of judgement.
3
Where a spouse permanently lacks capacity of judgement, his or her legal representative may likewise request separation of property for this reason.
Art. 186
191
Art. 187
1 The spouses may at any time reinstate their previous marital property regime or implement a new one by marital agreement.
190 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
191 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
II. Capacity to
enter into an
agreement
III. Form of the
agreement
C. Extraordinary
property regime I. At the request of one spouse 1. By court order 2. …
3. Revocation
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210
2
If the reason for the separation of property no longer exists, at the request of one spouse the court may direct that the previous marital property regime be reinstated.
Art. 188
If a spouse living under the community of property regime is declared
bankrupt, separation of property takes effect ex officio.
Art. 189
If a spouse living under the community of property regime is pursued
for a personal debt and his or her share of the common property is distrained, the debt enforcement supervisory authority may request that the court order a separation of property.
Art. 190
1 The request is directed against both spouses.
2
…193
Art. 191
1 If the creditors have been satisfied, at the request of one spouse the court may order the restoration of the community of property regime.
2
By marital agreement, the spouses may opt for the participation in acquired property regime.
Art. 192
Whenever the separation of property regime comes into effect, the
liquidation of the previous regime is governed by the provisions applicable to the latter, unless the law provides otherwise.
Art. 193
1 The establishment, variation or liquidation of a marital property regime may not have the effect of releasing an asset with which one of the spouses or the marital union had hitherto been liable to creditors from such liability.
2
If such an asset has been transferred to the other spouse, the latter must pay the debt but may be released from such liability to the extent 192 Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
193 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
II. In the event of bankruptcy or
distraint 1. Bankruptcy 2. Distraint a. By court order b. Request192
3. Revocation
III. Liquidation
of the previous
marital property
regime
D. Protection of
creditors
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210
that he or she may prove that the asset received is worth less than the debt.
Art. 194
194
Art. 195
1 Where one spouse expressly or tacitly entrusts management of his or her assets to the other, the provisions governing agency apply unless otherwise agreed.
2
The provisions governing settlement of debts between spouses are reserved.
a 1 Each spouse may at any time require the other's co-operation in drawing up an inventory of their joint assets in the form of a public deed.
2
Such an inventory is deemed accurate if made within one year of the inclusion of such assets under the regime.
Chapter Two: Statutory Marital Property Regime of Participation in Acquired Property
Art. 196
The marital property regime of participation in acquired property
comprises the property acquired during the marriage and the individual property of each spouse.
Art. 197
1 Acquired property comprises those assets which a spouse has acquired for valuable consideration during the marital property regime.
2
In particular, the acquired property of a spouse comprises: 1. the proceeds from his or her employment; 2. benefits received from staff welfare schemes, social security and social welfare institutions; 3. compensation for inability to work; 194 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
E. …
F. Management
of one spouse's
assets by the
other
G. Inventory
A. Ownership I. Categories II. Acquired
property
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210
4. income derived from his or her own property; 5. property acquired to replace acquired property.
Art. 198
By operation of law, a spouse's individual property comprises: 1. personal effects used exclusively by that spouse; 2. assets belonging to one spouse at the beginning of the marital property regime or acquired later at no cost by inheritance or otherwise; 3. claims for satisfaction; 4. acquisitions that replace individual property.
Art. 199
1 Under a marital agreement, spouses may declare acquired property to be individual property set aside for professional or business use.
2
Furthermore, spouses may stipulate in a marital agreement that income from individual property does not qualify as acquired property.
Art. 200
1 Any person who asserts that a specific object or asset is owned by one or other spouse bears the burden of proof.
2
If no such proof may be adduced, the object or asset is presumed to be in the co-ownership of both spouses.
3
Until proven otherwise, all assets of a spouse are deemed to be acquired property.
Art. 201
1 Within the limits of the law, each spouse administers and enjoys the benefits of his or her individual property and has power of disposal over it.
2
If an asset is in the co-ownership of both spouses, neither spouse may dispose of his or her share in it without the other's consent, unless otherwise agreed.
Art. 202
Each spouse is liable for his or her debts with all his or her property.
III. Individual
property 1. By operation of law
2. By marital
agreement
IV. Proof
B. Management,
benefits and
power of
disposal
C. Liability
toward third
parties
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210
Art. 203
1 The marital property regime does not affect the maturity of debts contracted between spouses.
2
However, if payment of debts or the restitution of objects owed by a spouse would cause him or her serious difficulties which might endanger the marital union, such spouse may request a time limit within which to satisfy the claim; the claim is to be secured where reasonable in the circumstances.
Art. 204
1 The marital property regime is dissolved on the death of a spouse or on implementation of a different regime.
2
In the case of divorce, separation, annulment of the marriage or a court order for separation of property, the dissolution of the marital property regime takes retroactive effect as of the date on which the application was filed.
Art. 205
1 Each spouse shall take back any of his or her property that is in the other's possession.
2
Where one spouse shows an overriding interest in gaining sole possession of an object or asset in co-ownership, and notwithstanding any other legal measures available, he or she may request that said object or asset be allocated to him or her in return for compensation.
3
The spouses settle their debts to each other.
Art. 206
1 Where a spouse has contributed to the acquisition, improvement or preservation of an asset belonging to the other without receiving equivalent compensation, and where at the time of the liquidation that asset has increased in value, then his or her claim corresponds to his or her proportionate contribution and is calculated according to the current value of the asset; if, conversely, the asset has decreased in value, his or her claim corresponds to the original contribution.
2
If such an asset had already been alienated beforehand, the claim is calculated according to the proceeds obtained and is due immediately.
3
By written agreement, spouses may exclude participation in the increased value or vary the proportion thereof.
D. Debts
between spouses
E. Dissolution of
the property
regime and
liquidation I. Time of dissolution
II. Taking back
property and
settling debts 1. In general 2. Participation
in increased
value
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210
Art. 207
1 The property acquired during marriage and the individual property of each spouse are separated according to their value at the time of the dissolution of the marital property regime.
2
Lump sum pension or invalidity benefits received by a spouse are added to his or her individual property in an amount equivalent to the present value of the pension or invalidity annuity to which he or she would be entitled on dissolution of the marital property regime.
Art. 208
1 The following are added to the property acquired during marriage: 1. the value of dispositions made without consideration by one spouse without the other's consent during the five years preceding the dissolution of the marital property regime, save for the usual occasional gifts; 2. the value of assets disposed of by one spouse during the marital property regime with the intention of diminishing the other's share.
2
…195
Art. 209
1 Where debts incurred in connection with acquired property have been paid out of individual property or where debts incurred in connection with individual property have been paid out of acquired property, there is a claim for compensation when the marital property regime is liquidated.
2
A debt encumbers the property in relation to which it was incurred, and in the event of doubt, it encumbers the acquired property.
3
If assets belonging to one category of property have contributed to the acquisition, improvement or preservation of assets belonging to the other and if the value of the latter has increased or diminished, the claim for compensation corresponds to the proportionate contribution made and is calculated according to the value of the assets at the time of the liquidation or their disposal.
Art. 210
1 The remaining total value of the acquired property, including the assets added in and claims for compensation, and after deduction of the debts encumbering the acquired property, constitutes the surplus.
195 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
III. Calculating
the surplus for
each spouse 1. Separation of acquired
property and
individual
property
2. Additions
3. Compensation
operations
between
acquired
property and
individual
property
4. Surplus
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210
2
A deficit is disregarded.
Art. 211
For the purpose of liquidating the marital property regime, assets are
stated at their market value.
Art. 212
1 An agricultural enterprise which one spouse continues to operate as owner or in respect of which the surviving spouse or one of the issue makes a justified claim for undivided allocation is stated at its capitalised value when calculating the proportionate added value and the claim for participation.
2
The owner of the agricultural enterprise or his or her heirs may bring a claim against the other spouse for proportionate added value or participation only in the amount they would receive if the business were stated at its market value.
3
The inheritance law provisions governing valuation and the participation of co-heirs in the profit apply mutatis mutandis.
Art. 213
1 The allocation value may be increased by a suitable amount if justified by special circumstances.
2
Special circumstances include in particular the maintenance requirements of the surviving spouse, the purchase price of the agricultural enterprise including capital investments, and the financial circumstances of the spouse to whom the agricultural enterprise belongs.
Art. 214
1 For the purpose of valuing the acquired property at hand at the time of the dissolution of the marital property regime, the defining juncture is the time of the division.
2
For assets added to the acquired property, the defining juncture is the date on which they were alienated.
Art. 215
1 Each spouse or his or her heirs is or are entitled to one-half of the surplus of the other spouse.
2
The claims are set off.
IV. Valuation 1. Market value 2. Capitalised
value a. In general b. Special
circumstances
3. Defining
juncture
V. Participation
in the surplus 1. By law
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210
Art. 216
1 A different participation in the surplus may be agreed by marital agreement.
2
Such agreements must not adversely affect the statutory inheritance entitlements of children who are not the common issue of the spouses or those of the issue of such children.
Art. 217
In the case of divorce, separation, annulment of marriage or separation
of property by court order, agreements varying the statutory participation in the surplus are valid only if the marital property agreement expressly so provides.
Art. 218
1 If immediate payment of the participation claim and the share of the increased value would cause serious difficulties for the debtor, he or she may request a deferral.
2
Unless otherwise agreed by the spouses, the participation claim and the share of the increased value bear interest as of completion of the division of property and, where justified in the circumstances, security must be furnished.
Art. 219
1 To ensure that the surviving spouse may maintain his or her accustomed lifestyle, at his or her request he or she will be granted a usufruct of or a right of residence in the home in which the spouses lived and which belonged to the deceased spouse, and this will be set off against his or her entitlement, subject to any contrary provision in the marital agreement.
2
On the same conditions, he or she may request that ownership of the household effects be transferred to him or her.
3
Where justified in the circumstances, at the request of the surviving spouse or the other legal heirs of the deceased spouse, ownership of the home may be granted rather than a usufruct or right of residence.
4
The surviving spouse may not claim such rights in respect of premises in which the deceased practised a profession or ran a business and which are required by one of his or her issue in order to continue said profession or business, subject to the provisions of agricultural inheritance law.
2. By agreement a. In general b. On divorce,
separation,
annulment of the
marriage or
separation of
property by court
order
VI. Payment of
the participation
claim and the
share of the
increased value 1. Deferred payment
2. Home and
household
effects
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210
Art. 220
1 If the assets of the debtor or his or her estate are insufficient to cover the participation claim on division of the property, the entitled spouse or his or her heirs may demand from third-party beneficiaries the return of such dispositions as are to be added to the acquired property up to the amount of the shortfall.
2
The right to bring a claim is extinguished one year after the spouse or his or her heirs learn of the infringement of their rights, but in any event ten years after the dissolution of the marital property regime.
3
Moreover, the provisions governing claims in abatement under inheritance law apply mutatis mutandis.196 Chapter Three: Community of Property
Art. 221
The marital property regime of community of property comprises the
common property and the individual property of each spouse.
Art. 222
1 The general community of property combines the assets and income of the spouses into common property, with the exception of those assets which by law constitute individual property.
2
The common property belongs to both spouses jointly.
3
Neither spouse is entitled to dispose of his or her share of the common property.
Art. 223
1 By marital agreement, the spouses may restrict community of property to the property acquired during marriage.
2
Revenue from individual property becomes common property.
Art. 224
1 By marital agreement, the spouses may exclude from the community of property specific assets or types of assets, such as land, a spouse's income from work or assets used to practise a profession or run a business.
196 Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
3. Claims against
third parties
A. Ownership I. Categories II. Common
property 1. General community of
property
2. Limited
community of
property a. Community restricted to
acquired
property
b. Further
community of
property regimes
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210
2
Unless otherwise agreed, income from such assets does not become common property.
Art. 225
1 Individual property may be created by marital agreement, dispositions by third parties or by law.
2
By law, items for the exclusive personal use of a spouse and claims for satisfaction constitute individual property.
3
A spouse's statutory inheritance entitlement may not pass to him or her from his or her relatives as individual property where the marital agreement provides that such assets are common property.
Art. 226
All assets are presumed to be common property unless proven to be
the individual property of a spouse.
Art. 227
1 The spouses must manage the common property in the best interests of the marital union.
2
Within the limits of everyday housekeeping, each spouse may incur commitments on behalf of the marital union and dispose of common property.
Art. 228
1 Outside the limits of everyday housekeeping, the spouses may incur commitments on behalf of the common property and dispose thereof only jointly or individually with the other's consent.
2
Third parties are entitled to presume such consent provided they do not know or cannot be expected to know that it is absent.
3
The provisions governing representation of the marital union are reserved.
Art. 229
If a spouse practises a profession or runs a business on his or her own
using common property with the other's consent, he or she may conclude all transactions that such activities entail.
III. Individual
property
IV. Proof
B. Management
and power of
disposal I. Common
property 1. Everyday housekeeping
2. Extraordinary
housekeeping
3. Use of
common
property for
professional or
business
purposes
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210
Art. 230
1 Without the other's consent, a spouse is not entitled to renounce an inheritance which would become common property or accept inheritance of an overindebted estate.
2
If the spouse is unable to obtain consent or if it is withheld without good cause, he or she may petition the court.197
Art. 231
1 In relation to dealings concerning common property, on dissolution of the marital property regime, each spouse is liable as if he or she were an agent.
2
The costs of management are borne by the common property.
Art. 232
1 Each spouse administers and disposes of his or her individual property within the limits of the law.
2
If income accrues to individual property, the management costs are borne by such property.
Art. 233
Each spouse is liable with his or her individual property and the common property: 1. for debts incurred in exercising his or her powers to represent the marital union or in managing the common property; 2. for debts incurred in the pursuit of a profession or business, provided common property has been used for this or the income therefrom becomes common property; 3. for debts for which the other spouse is also personally liable; 4. for debts in respect of which the spouses have agreed with third parties that their common property as well as the debtor's individual property will be liable.
Art. 234
1 For all other debts a spouse is liable only to the extent of his or her individual property and half the value of the common property.
2
Claims arising from the unjust enrichment of the marital union are reserved.
197 Amended by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
4. Renunciation
and acceptance
of inheritances
5. Liability and
management
costs
II. Individual
property
C. Liability
toward third
parties I. Full liability II. Individual
liability
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210
Art. 235
1 The marital property regime does not affect the maturity of debts contracted between spouses.
2
However, if payment of debts or the restitution of objects owed by a spouse would cause him or her serious difficulties which might endanger the marital union, such spouse may request to be granted a time limit in which to satisfy the claim; the claim is to be secured where reasonable in the circumstances.
Art. 236
1 The marital property regime is dissolved on the death of a spouse, the implementation of a different regime or when one of the spouses is declared bankrupt.
2
In the case of divorce, separation, annulment of the marriage or a court order for separation of property, the dissolution of the marital property regime takes retroactive effect as of the date on which the application was filed.
3
When determining the composition of common property and individual property, the defining juncture is the dissolution of the marital property regime.
Art. 237
Lump sum pension or invalidity benefits received by a spouse that
have become common property are added to his or her individual property in the capitalised amount equivalent to the pension or invalidity annuity to which he or she would be entitled on dissolution of the marital property regime.
Art. 238
1 Where debts encumbering one category of property were paid out of assets belonging to the other, respective compensation claims between the common property and the individual property of each spouse arise on the dissolution of the marital property regime.
2
A debt encumbers the property in relation to which it was incurred, but in the case of doubt it encumbers the common property.
Art. 239
Where the individual property of a spouse or the common property has
contributed to the acquisition, improvement or preservation of an asset belonging to another category of property, the provisions governing increased value in relation to participation in acquired property apply mutatis mutandis.
D. Debts
between spouses
E. Dissolution of
the property
regime and
liquidation I. Time of dissolution
II. Allocation to
individual
property
III. Compensation operations
between joint
and individual
property
IV. Participation
in increased
value
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210
Art. 240
For the purpose of valuing the common property at hand at the time of
the dissolution of the marital property regime, the defining juncture is the time of the division.
Art. 241
1 If the community of property regime is dissolved by the death of a spouse or the implementation of a different marital property regime, each party or his or her heirs is entitled to one-half of the common property.
2
A different method of division may be agreed by marital agreement.
3
Such agreements must not adversely affect the statutory inheritance entitlements of the spouse's issue.
Art. 242
1 On divorce, separation, annulment of the marriage or separation of property by law or court order, each spouse shall take back from the common property such property as would have been his or her individual property under the participation in acquired property regime.
2
The remaining common property is divided equally between the spouses.
3
Agreements to vary the statutory method of division are valid only if the marital agreement expressly so provides.
Art. 243
If the community of property is dissolved by the death of a spouse, the
surviving spouse may request that such property as would have been his or her individual property under the participation in acquired property regime be allocated to him or her and count toward his or her share of the estate.
Art. 244
1 If the home in which the spouses lived or any household effects belong to the common property, the surviving spouse may request that such property be allocated to him or her and count toward his or her share of the estate.
2
Where justified in the circumstances, at the request of the surviving spouse or the other legal heirs of the deceased spouse, a usufruct or right of residence may be granted in lieu of ownership.
V. Valuation
VI. Division 1. On death or implementation
of a different
marital property
regime
2. In other cases
VII. Division of
the property 1. Individual property
2. Home and
household
effects
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66
210
3
If the community of property is not dissolved by death, each spouse may make such requests where he or she may show an overriding interest.
Art. 245
If a spouse demonstrates an overriding interest, he or she may also
demand that other assets be allocated to him or her and count toward his or her share.
Art. 246
In other respects the provisions governing the division of property in
co-ownership and the division of estates apply mutatis mutandis.
Chapter Four: Separation of Property
Art. 247
Within the limits of the law, each spouse shall administer and enjoy
the benefits of his or her own property and has power of disposal over it.
Art. 248
1 Any person who asserts that a specific object or asset is owned by one or other spouse bears the burden of proof.
2
If no such proof may be adduced, there is a presumption of coownership.
Art. 249
Each spouse is liable for his or her debts with all his or her property.
Art. 250
1 The marital property regime does not affect the maturity of debts contracted between spouses.
2
However, if payment of debts or the restitution of objects owed by a spouse would cause him or her serious difficulties which might endanger the marital union, such spouse may request to be granted a time limit in which to satisfy the claim; the claim is to be secured where reasonable in the circumstances.
3. Other assets
4. Further
provisions
A. Management,
benefits and
power of
disposal I. In general II. Proof
B. Liability
toward third
parties
C. Debts
between spouses
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210
Art. 251
Where one spouse shows an overriding interest in gaining sole possession of an object or asset in co-ownership, and notwithstanding any other legal measures available, he or she may request that said object or asset be allocated to him or her in return for compensation.
Division Two: Kinship Title Seven: Formation of the Parent-child Relationship198 Chapter One: General Provisions199
Art. 252
200 1 The parent-child relationship is formed between child and mother on the birth of the child.
2
It is formed between child and father by virtue of the latter being married to the mother, by recognition or by court declaration.
3
Moreover, the parent-child relationship is formed by adoption.
Art. 253
201
Art. 254
202
Chapter Two: Paternity of the Husband203
Art. 255
204 1 Where a child is born in wedlock, the husband is deemed to be the father.
198 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
199 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
200 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
201 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
202 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
203 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
204 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
D. Allocation of
property in coownership
A. Formation of
parent-child
relationship in
general
B. …
A. Presumption
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68
210
2
If the husband dies, he is deemed to be the father provided the child is born within 300 days of his death or, if born thereafter, if it is shown that the child was conceived before the husband's death.
3
If the husband has been declared presumed dead, he is deemed to have been the father provided the child is born within 300 days of the life-threatening event or the last sign of life.
Art. 256
205 1 The presumption of paternity may be challenged in court: 1. by the husband; 2.206 by the child if the spouses cease living together while the child is still a minor.
2
The husband's challenge is directed against the child and the mother, that of the child against the husband and the mother.
3
The husband has no right of challenge if he consented to impregnation by a third party. The child's right to challenge paternity is subject to the Reproductive Medicine Act of 18 December 1998207.208
a209 1 If a child was conceived in wedlock, the challenging party must show that the husband is not the father.
2
The child is presumed to have been conceived in wedlock if it was born no earlier than 180 days after the wedding and no later than 300 days after the marriage was dissolved as a result of death.210
b211 1 If a child was conceived before the marriage was concluded or at a time when the spouses were living apart, no further grounds need be given for the challenge.
205 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
206 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
207 SR
810.11
208 Amended by Art. 39 of the Federal Act on Medically Assisted Reproduction of 18 Dec. 1998 in force since 1 Jan. 2001 (AS 2000 3055; BBl 1996 III 205).
209 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
210 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
211 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
B. Challenge I. Right to challenge
II. Grounds for
challenge 1. In the case of conception in
wedlock
2. In the case of
conception
before marriage
or while spouses
were living apart
Swiss Civil Code
69
210
2
However, in such cases the paternity of the husband is still presumed where the court is satisfied that he had sexual intercourse with the mother around the date of the conception.
c212 1 The husband must file the challenge within one year of learning of the birth and of the fact that he is not the father or that another man had sexual intercourse with the mother around the date of the conception, but in any event not later than five years after the birth.
2
The child's challenge must be filed at the latest within one year of attaining the age of majority.213 3 Once these time limits have expired, a challenge of paternity is admissible provided there is good cause for the delay.
Art. 257
214 1 Where a child was born within 300 days of the dissolution of the marriage as a result of death and the mother has since remarried, the second husband is deemed to be the father.215 2 If this presumption is disproved, the first husband is deemed to be the father.
Art. 258
216 1 If the husband died or lost capacity of judgement before the time limit expired, his father or his mother may challenge his paternity.
2
In this case the provisions governing a challenge by the husband apply mutatis mutandis.
3
The one-year time limit for bringing the claim begins at the earliest on the date on which the father or mother learns of the husband's death or loss of capacity of judgement.
212 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
213 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
214 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
215 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
216 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
III. Time limits
C. Conflict of
presumptions
D. Challenge by
the parents
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70
210
Art. 259
217 1 If the parents marry each other, the provisions governing children born in wedlock apply mutatis mutandis to a child born prior to the marriage, providing the paternity of the husband is established by recognition or court declaration.
2
Recognition may be challenged: 1. by
the
mother;
2.218 by the child or, after his or her death, by his or her issue if the spouses ceased living together while the child was still a minor or if recognition did not occur until after the child's twelfth birthday; 3. by the husband's commune of origin or residence; 4. by the husband.
3
The provisions governing challenge of recognition apply mutatis mutandis.
Chapter Three: Recognition and Court Declaration of Paternity219
Art. 260
220 1 Where the parent-child relationship exists only with the mother, the father may recognise the child.
2
Where the recognising person is a minor or subject to a general deputyship or if the adult protection authority has issued a related order, recognition requires the consent of his or her legal representative.221 3 Recognition is effected by means of a declaration made before the civil registrar or by testamentary disposition or, if an action to declare paternity is pending, by a declaration made to the court.
217 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
218 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
219 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
220 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
221 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
E. Marriage of
the parents
A. Recognition I. Admissibility and form
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71
210
a222 1 Recognition may be challenged before the courts by any interested party, namely the mother, the child or, after its death, its issue, and by the commune of origin or domicile of the recognising person.
2
The recognising person is entitled to file a challenge only if he or she recognised the child under threat of imminent and substantial risk to his or her own life, limb, reputation or property or to those of a person close to him or her, or in the erroneous belief that he was the father.
3
The challenge is directed against the recognising person and the child, insofar as they themselves are not the challenging persons.
b223 1 The challenging person must prove that the recognising person is not the child's father.
2
However, mother and child are only required to prove this if the recognising person may satisfy the court that he had sexual intercourse with the mother around the time of the child's conception.
c224 1 The challenge must be filed within one year of the date on which the claimant learned of the recognition and the fact that the recognising person is not the father, or that another man had sexual intercourse with the mother around the time of the conception, or on which he or she learned of his or her error or on which the threat ceased, but in any event within five years of the recognition.
2
In all cases, the child may file the challenge at any time prior to the elapse of one year after attaining the age of majority.225 3 Once these time limits have expired, a challenge of recognition is admissible provided there is good cause for the delay.
222 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
223 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
224 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
225 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
II. Challenge 1. Right to challenge
2. Grounds
3. Time limits
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72
210
Art. 261
226 1 Both mother and child are entitled to bring an action to declare the existence of the parent-child relationship between the child and the father.
2
The action is brought against the father or, if he has died, in order of priority against his issue, parents or siblings or, where none exist, against the competent authority of his last domicile.
3
If the father has died, the court must inform his wife that the action has been brought so that she may safeguard her interests.
Art. 262
227 1 If the defendant had sexual intercourse with the mother during the period between the 300th day and the 180th day before the child's birth, his paternity is presumed.
2
Paternity is also presumed even if the child was conceived prior to the 300th day or after the 180th day prior to birth provided the defendant had sexual intercourse with the mother during the period in which the child was conceived.
3
There is no such presumption if the defendant shows that his paternity is either impossible or less probable than that of another man.
Art. 263
228 1 The action is admissible both before and after the birth but must be brought:
1. by the mother within one year of the birth; 2.229 by the child at any time prior to the elapse of one year after attaining the age of majority.
2
If a parent-child relationship already exists with another man, the action may in any event be brought within one year of the date on which said relationship is annulled.
3
Once these time limits have expired, an action for determination of paternity is admissible provided there is good cause for the delay.
226 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
227 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
228 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
229 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
B. Action to
determine
paternity I. Right to bring the action
II. Presumption
III. Time limits
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73
210
Chapter Four:230 Adoption
Art. 264
231 1 A minor child may be adopted if the persons wishing to adopt have raised and cared for the child for at least one year and provided the general circumstances suggest that establishing a parent-child relationship would be in the child's best interests without being unfair for any other children of the adoptive parents.
2
Adoption is only possible, if the persons wishing to adopt the child are able to provide for the child up to the child's majority on the basis of their age and their personal circumstances.
a232 1 Spouses may adopt a child jointly if they have been in the same household for at least three years and both are at least 28 years old.
2
Exceptions from the minimum age may be made if this is necessary for the welfare of the child. The spouses must justify the exception.
b233 1 A person who is not married and does not live in a registered partnership is permitted to adopt a child alone if he or she is at least 28 years old.
2
A married person who is at least 28 years old is permitted to adopt alone where the other spouse permanently lacks capacity of judgement or has been of unknown whereabouts for more than 2 years or if the spouses have been separated by court order for more than 3 years.
3
A person living in a registered partnership who is at least 28 old is permitted to adopt a child alone if his or her registered partner permanently lacks capacity of judgement or has been of unknown whereabouts for more than 2 years.
4
Exceptions from the minimum age may be made if this is necessary for the welfare of the child. The person wishing to adopt must justify the exception.
230 Originally Chapter Three.
231 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
232 Inserted by No I 1 of the FA of 30 June 1972 (AS 1972 2819; BBl 1971 I 1200).
Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877) 233 Inserted by No I 1 of the FA of 30 June 1972 (AS 1972 2819; BBl 1971 I 1200).
Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877) A. Adoption of
minors I. General
requirements
II. Joint adoption
III. Adoption by
a single person
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74
210
c234 1 A person is permitted to adopt the child of the person: 1. to whom he or she is married; 2. with whom he or she lives in a registered partnership; 3. with whom he or she cohabits.
2
The couple must have been in the same household for at least three years.
3
Persons who cohabit are not permitted to be married or to be bound by a registered partnership.
d235 1 The age difference between the child and the persons wishing to adopt may not be less than 16 years and not more than 45 years. 2 Exceptions may be made if this is necessary for the welfare of the child. The person wishing to adopt must justify the exception.
Art. 265
236 1 If the child is capable of judgement, its consent is required for the adoption.
2
Where the child has a legal guardian or a legal representative, adoption requires the consent of the child protection authority even if the child is capable of judgement.
a237 1 Adoption requires the consent of the child's father and mother.
2
Such consent must be given by oral or written declaration to the child protection authority of the parents' or child's domicile or temporary residence and must be recorded.
3
Such consent is valid even if the persons wishing to adopt are not named or not yet determined.239 234 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
235 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
236 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
237 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
238 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
239 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
IV. Adoption of
a stepchild
V. Difference in
age
VI. Consent of
the child and the
child protection
authority
VII. Parents'
consent238 1. Form
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75
210
b240 1 Consent to adoption may not be given until at least six weeks after the birth of the child.
2
It may be revoked within six weeks of having been accepted.
3
Where consent, having been revoked, is given again, it is then final.
c241 The consent of a parent may be dispensed with if the identity of that parent is unknown, or if he or she has been of unknown whereabouts for some length of time, or permanently lacks capacity of judgement.
d242 1 Where the child is entrusted to persons wishing to adopt with a view to subsequent adoption and the consent of one parent is not forthcoming, the child protection authority at the child's domicile shall , at the request of the legal guardian or a legal representative, an adoption agency or the persons wishing to adopt, decide whether such consent can be dispensed with, as a rule before the child is placed in care.243 2 In all other cases, the decision is made at the time of the adoption.
3
…244
Art. 266
245 1 An adult may be adopted if: 1. he or she is permanently in need of help for physical, mental or psychological reasons and the persons wishing to adopt have looked after him or her for at least one year; 2. the persons wishing to adopt raised and cared for the person for at least one year while he or she was still a minor; or 240 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
241 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
242 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
243 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
244 Repealed by No I of the FA of 17 June 2016 (Adoption), with effect from 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
245 Amended by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
2. Time of
consent
3. Dispensing
with consent a. Requirements b. Decision
B. Adoption of
an adult
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76
210
3. there are other good reasons and he or she has lived in the same household with the persons wishing to adopt for at least one year.
2
In all other respects, the provisions governing adoption of minors apply mutatis mutandis, with the exception of the provision on parental consent.
Art. 267
246 1 The adoptive child acquires the legal status of a child of the persons wishing to adopt. 2
Previous parent-child relationships are extinguished.
3
The child's relationship with the parent who: 1. is married to;
2. lives in a registered partnership with; 3. cohabits with.
the adopting person is not extinguished.
a247 1 In the case of joint adoption and adoption by a single person, the minor may be given a new first name if there are good reasons for doing so. Prior to this, the child is heard in person in an appropriate manner by the competent authority or by a third party appointed for this purpose, unless this is inadvisable due to the child's age or for other good cause. If the child is at least twelve years of age, a change of name requires his or her consent.
2
The name of the child is determined in accordance with the provisions governing the legal effects of the parent-child relationship.
These apply mutatis mutandis to the adoption of the child by the registered partner of its mother or father.
3
The competent authority may authorise an adult to be adopted to continue using his or her existing name if there are good reasons for doing so.
4
The change of name of an adult to be adopted does not affect the naming of persons whose name is derived from the previous name of the person to be adopted, unless they expressly agree to a change of name.
246 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
247 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200). Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581) C. Effect I. In general II. Name
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77
210
b248 The citizenship of a minor is determined by provisions governing the legal effects of the parent-child relationship.
Art. 268
249
Adoption is pronounced by the competent cantonal authority at the adoptive parents' domicile.
2
The adoption requirements must already be met when the application is submitted.250 3
Once the application has been submitted, the death or loss of capacity of judgement of the person wishing to adopt does not preclude the adoption provided the other requirements are still fulfilled.251 4
If the child attains the age of majority after the application for adoption has been submitted, the provisions governing the adoption of minors continue to apply provided the requirements for adoption were previously fulfilled.252 5
The adoption decision shall contain all the information required for entry in the civil register relating to the first name, surname and citizenship of the adopted person.253
a254 1 An application for adoption may not be upheld until all material circumstances have been thoroughly investigated, where necessary in consultation with the relevant specialists.
2
In particular, the investigation must look into the character and health of the persons wishing to adopt and the child, their mutual relationship, their suitability as parents, their financial situation, motives and family circumstances and the history of the child care relationship.255 248 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
249 Amended by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
250 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
251 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
252 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
253 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
254 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
255 Amended by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
III. Citizenship
D. Procedure I. In general II. Investigation
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78
210
3
…256
abis 257 1 The child shall be heard in person in an appropriate manner by the cantonal authority responsible for the adoption procedure or by a third party appointed for this purpose, unless this is inadvisable due to the child's age or for other good cause.
2
Minutes shall be kept of the hearing.
3
A child capable of judgement may appeal against a decision to refuse a hearing.
ater 258 1 The cantonal authority responsible for the adoption procedure shall order the child to be represented and appoint a person experienced in welfare and legal matters as the child's deputy. 2 If a child with the capacity to consent so requests, a representative must be appointed. 3
The child may challenge the rejection of his or her request by filing an objection.
aquater 259 1 Where the persons wishing to adopt have issue of their own, the latter's attitude to the adoption must be taken into account. 2 Prior to the adoption of an adult, the attitude of following persons must also be taken into account: 1. the spouse or registered partner of the person to be adopted; 2. the biological parents of the person to be adopted 3. the issue of the person to be adopted, unless this is inadvisable due to their age or for other good cause.
3
These persons shall, if possible, be notified of the adoption decision.
256 Repealed by No I of the FA of 17 June 2016 (Adoption), with effect from 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
257 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
258 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
259 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
III. Hearing for
the child
IV. Representation for the child
V. Taking
account of the
attitude of family
members
Swiss Civil Code
79
210
b260 1 The adopted child and the adoptive parents are entitled to confidentiality of adoption information.
2
Identifying information about the minor or his or her adoptive parents may only be disclosed to the biological parents if the child is capable of judgement, and the adoptive parents and the child have consented to disclosure.
3
Identifying information about the adult child may be disclosed to the biological parents and their direct descendants if the child has consented to disclosure.
Art.
268c261 1
The adoptive parents must inform the child of his or her adoption when his or her age or maturity permits.
2
A minor is entitled to information about his or her biological parents, provided it is not possible to draw conclusions about their identity.
The child shall be given identifying information only if he or she can show an interest worthy of protection. 3 An adult child may at any time request that the personal details of his or her biological parents and further information about them be disclosed to him or her. The adult child may also request that information about the direct descendants of his or her biological parents be disclosed to him or her if the descendants are of age and have consented to the disclosure.
Art.
268d262 1
Information about the biological parents, their direct descendants and the child may be obtained from the cantonal authority responsible for the adoption procedure.
2
The authority shall inform the person referred to in the request for information about the request and, where necessary, obtain his or her consent to contact the person requesting information. The authority may delegate these tasks to a specialised tracing service.
3
If the person referred to in the request for information refuses to make personal contact, the authority or the authorised tracing service shall inform the person requesting information and draw his or her 260 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
261 Inserted by Annex No. 2 of the FA of 22 June 2001 on the Hague Adoption Convention and Measures to Protect Children in respect of Inter-Country Adoption, in force since 1 Jan. 2003 (AS 2002 3988; BBl 1999 5795).
262 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
Dbis.Confidential
ity of adoption
information
Dter. Information
on the adoption,
the biological
parents and their
issue
Dquater. Cantonal
information
centre and
tracing services
Swiss Civil Code
80
210
attention to the personal rights of the person referred to in the request for information.
4
The cantons shall designate a body to provide advice to the biological parents, their direct descendants or the child on request.
Art.
268e263 1
The adoptive parents and the biological parents may agree that the biological parents be entitled to reasonable contact with the minor.
This agreement and any amendments thereto shall be submitted to the child protection authority at the child's place of residence for approval. The child protection authority or a third party appointed by it shall hear the child in person in an appropriate manner before the decision is taken, unless this is inadvisable due to the child's age or for other good cause. If the child is capable of judgement, its consent is required for the agreement.
2
If the best interests of the child are at risk or if there is disagreement about the implementation of the agreement, the child protection authority shall decide.
3
The child may refuse contact with its biological parents at any time.
The adoptive parents may not pass on information to the biological parents against the child's will.
Art. 269
264 1 Where for no just cause consent has not been obtained, those persons whose consent is required may bring an action to challenge the adoption providing this does not seriously impair the interests of the child.
2
However, the parents are not entitled to bring such action where they may appeal against the decision to the Federal Supreme Court.
a265 1 If the adoption displays other grave defects, it may be challenged by any interested party and in particular by the commune of origin or domicile.
2
However, a challenge is excluded if the defect has been rectified in the interim or if it relates solely to procedural provisions.
263 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
264 Amended by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
265 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
Dquinquies.
Contact with the
biological
parents
E. Challenge I. Grounds 1. Lack of consent
2. Other defects
Swiss Civil Code
81
210
b266 An action to challenge the adoption must be brought within six
months of discovering the grounds for the challenge and in any event within two years of the adoption.
c267 1 The Confederation is responsible for supervising child adoption agency activities.
2
Any person engaging in such activities professionally or in connection with his or her professional activities requires an official licence; this does not apply to agency services rendered by the child protection authority.268 3
The Federal Council enacts the implementing regulations and determines the manner in which the cantonal authorities responsible for placing children in foster care with a view to subsequent adoption are to be involved in assessing fulfilment of the requirements for approval of adoption and in carrying out the necessary supervision.
4
…269
Title Eight: Effects of the Parent-Child Relationship270 Section One: Community of Parents and Children271
Art. 270
272 1 Where the parents are married to each other but bear different surnames, the child takes the surname that the parents decided would be given to their children when they married.
2
Within one year of the birth of their first child, the parents may request that the child take the surname of the other parent.
266 Inserted by No I 1 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
267 Inserted by No I 3 of the FA of 30 June 1972 (AS 1972 2819; BBl 1971 I 1200).
Amended by Annex No. 2 of the FA of 22 June 2001 on the Hague Adoption Convention and Measures to Protect Children in respect of Inter-Country Adoption, in force since 1 Jan. 2003 (AS 2002 3988; BBl 1999 5795).
268 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
269 Repealed by Annex No. 15 of the Federal Administrative Court Law of 17 June 2005, in effect since 1 Jan. 2007 (AS 2006 2197; BBl 2001 4202).
270 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
271 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
272 Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
II. Time limits
F. Adoption
agency services
A. Family
surname I. Child of married parents
Swiss Civil Code
82
210
3
If the parents bear a joint family name, the child takes that name.
a273 1 If one parent has parental responsibility, the child takes that parent's surname before marriage. If the parents share parental responsibility, they decide which of their surnames before marriage their children should take.
2
If joint parental responsibility is established after the birth of the first child, either parent may within a year of its establishment declare before the civil registrar that the child should take the other parent's name before marriage. This declaration applies to all common children, regardless of who is given parental responsibility.
3
If neither parent has parental responsibility, the child takes the mother's name before marriage.
4
A change in the allocation of parental responsibility has no effect on names. The provisions on changing names are reserved.
b274 If the child has attained the age of twelve, his or her surname may
only be changed if he or she consents.
Art. 271
275 1 The child acquires the cantonal and communal citizenship of the parent whose surname the child bears.
2 Where a child acquires the surname of the other parent while still a minor, the child acquires the cantonal and communal citizenship of that parent.
Art. 272
276 Parents and children owe each other such support, consideration and respect as the good of the family community requires.
273 Inserted by No I of the FA of 30 Sept. 2011 (Name and Citizenship; AS 2012 2569; BBl 2009 7573 7581). Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
274 Inserted by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
275 Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
276 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
II. Child of
unmarried
parents
III. Consent of
the child
B. Citizenship
C. Support and
common welfare
Swiss Civil Code
83
210
Art. 273
277 1 Parents not granted parental responsibility or whose children are not resident with them are entitled to reasonable contact with their minor children, and their children are entitled to contact with them.278 2 The child protection authority may remind parents, foster parents or the child of their duties and issue them with instructions where the exercise or failure to exercise contact entitlements is detrimental to the child or where such reminder or direction is required for some other reason.
3
Contact entitlements must be stipulated if either the father or the mother so requests.
Art. 274
279 1 The father and the mother must refrain from any conduct that impairs the child's relationship with the other parent or makes the task of the person with custody more difficult.280 2
Where contact with the child is not in its best interests, or the parents breach their duties in the course of such contact or have not cared for the child to any meaningful degree, or other good cause exists, the parents' right of contact with the child may be refused or withdrawn.
3
Where the parents have consented to the adoption of their child or their consent may be dispensed with, their right of contact with the child is extinguished as soon as the child is placed in foster care with a view to future adoption.
a281 1 In extraordinary circumstances, a right of contact with the child may also be granted to other persons and in particular to relatives, to the extent this serves the child's best interests.
2
The restrictions on parents' visiting rights apply mutatis mutandis.
277 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
278 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
279 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
280 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
281 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
D. Contact I. Parents and children 1. Principle 2. Restrictions
II. Third parties
Swiss Civil Code
84
210
Art. 275
282 1 Responsibility for orders regulating rights of contact with the child lies with the child protection authority at the child's domicile and with that of his or her place of temporary residence, insofar as the latter has taken or is taking child protection measures.
2
If the court regulates parental responsibility, residence or the child maintenance contribution in accordance with the provisions on the divorce and protection of the marital union, it shall also regulate contact.283 3 Where no orders have yet been issued regulating the father's and mother's contact entitlements, no contact may be had against the will of the person granted parental responsibility or with whom the child resides.
a284 1 Parents who do not exercise parental responsibility should be informed of special events in the child's life and consulted before important decisions affecting its development are taken.
2
They are entitled to obtain information concerning the child's condition and development from third parties involved in its care, such as teachers and doctors, in the same manner as the person with parental responsibility.
3
The provisions governing responsibility for and limitations on contact with the child apply mutatis mutandis.
Section Two: Parents' Duty of Maintenance285
Art. 276
286 1 Maintenance is provided by caring for and raising the child and in the form of monetary payments.288 282 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
283 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
284 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
285 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
286 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
287 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
288 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
III. Responsible
authorities
E. Right to
information
A. General I. Object and scope287
Swiss Civil Code
85
210
2
The parents must, each according to their own abilities, provide for the child's maintenance, including the costs of caring for and raising the child, his or her education and measures taken for his or her protection.289 3 The parents are released from their duty of maintenance to the extent that the child may reasonably be expected to meet the costs thereof from his or her own earnings or other resources.
a290 1 The duty of maintenance towards a minor shall take precedence over other maintenance duties under family law. 2 In justified cases, the court may disregard this rule, in particular in order to prevent any disadvantage to a child entitled to maintenance who is of age.
Art. 277
291 1 The parents' duty of maintenance lasts until the child attains the age of majority.292 2
If at that juncture the child has not yet had a suitable education, the parents must pay for his or her maintenance, to the extent conscionable in the overall circumstances, until such time as the child can complete a suitable education within the customary timescale.293
Art. 278
294 1 For the duration of their marriage, the parents bear the costs of maintenance in accordance with the provisions of marital law.
2
Each spouse must give the other all reasonable assistance in discharging the duty to maintain children born prior to the marriage.
289 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
290 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
291 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
292 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
293 Amended by No I of the FA of 7 Oct. 1994, in force since 1 Jan. 1996 (AS 1995 1126; BBl 1993 I 1169).
294 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
II. Precedence of
maintenance for
minors
B. Duration
C. Married
parents
Swiss Civil Code
86
210
Art. 279
295 1 The child is entitled to sue the father or the mother or both for maintenance in future and for one year prior to the bringing of such action.
2-3
…297
Art. 280
-284298
Art. 285
299 1 The child maintenance contribution should correspond to the child's needs and to the parents' financial circumstances and resources; the child's assets and income must be taken into account.
2
The child maintenance contribution also serves to ensure that the child is cared for by the parents or by third parties.
3
The child maintenance contribution is payable in advance on the dates stipulated by the court.
a300 1 Family allowance credits paid to the parent required to pay maintenance must be paid in addition to the maintenance. 2
Unless the court rules otherwise, any child allowance, social security children's supplement and similar child support benefits to which the parent subject to the duty of maintenance is entitled must be paid in addition to the child maintenance contribution.
3
Where as a result of old age or invalidity the parent subject to the duty of maintenance subsequently receives social security, children's supplements or similar child support benefits which replace his or her employment income, he or she must pay said benefits to the child; by operation of law, his or her existing child maintenance contribution is automatically reduced by the amount of such new benefits.
295 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
296 Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
297 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
298 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
299 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
300 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
D. Court action I. Right to sue296 II. and III. …
IV. Amount of
child maintenance contribu-
tion 1. Parents'
contribution
2. Other
payments for
maintenance of
the child
Swiss Civil Code
87
210
Art. 286
301 1 The court may order that the child maintenance contribution be automatically increased or decreased in the event of specified changes in the child's needs, the parents' financial resources or the cost of living.
2
If circumstances change considerably, at the request of one parent or the child the court will set a new level of child maintenance contribution or revoke it entirely.
3
Should the child have unforeseen, extraordinary needs the court may order the parents to make a special financial contribution.303
a304 1 If it was previously established in an approved maintenance agreement or a decision that no maintenance contribution could be set to provide due maintenance for the child, and should the circumstances of the parent liable to pay maintenance have since improved substantially, the child is entitled to claim payments that were not met by this parent during the previous five years in which payments were owed to provide due maintenance.
2
This claim must be brought within one year of it being known that the circumstances have improved substantially. 3 This claim passes with all rights to the other parent or to the state authority in as far as this parent or the state authority has met the missing share of the due maintenance.
Art. 287
305 1 Maintenance agreements are binding on the child only once they have been approved by the child protection authority.
2
Child maintenance contributions stipulated in such agreements may be modified, providing such changes have not been excluded with the approval of the child protection authority.
3
If the agreement is concluded in court proceedings, such approval must be given by the court.
301 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
302 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
303 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
304 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
305 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
V. Change of
circumstances 1. In general302 2. Shortfalls
E. Maintenance
agreements I. Regular payments
Swiss Civil Code
88
210
a306 Where maintenance contributions are set in a maintenance agreement,
the agreement must specify: a. the income and assets of each parent and each child from which the set amount is calculated; b. the amount set for each child; c. the amount required to cover any shortfall in the due maintenance of each child;
d. if and to what extent the maintenance contributions will be adjusted to reflect changes in living costs.
Art. 288
307 1 Full and final settlement of the child's maintenance entitlement may be agreed if it is in the child's best interests.
2
The settlement agreement becomes binding on the child only: 1. once the child protection authority or, in the case of an agreement reached during court proceedings, the court has approved it, and
2. once the settlement amount has been paid into the account designated in the approval.
Art. 289
309 1 The right to child maintenance contributions is that of the child and, so long as he or she is a minor, is fulfilled by payment to the child's legal representative or to the person with whom the child resides, unless the court decides otherwise.310 2 However, where the state authority assumes the cost of maintaining the child, such claim and all attendant rights pass to the state authority.
306 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
307 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
308 Ursprünglich
No
II.
309 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
310 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
II. Scope of a
maintenance
agreement
III. Final
settlement308
F. Fulfilment I. Entitlement
Swiss Civil Code
89
210
Art. 290
311 1 If a father or mother does not fulfil his or her obligation to provide maintenance, a specialist office designated by cantonal law shall, on application, help the child and the other parent to enforce the maintenance claim appropriately and free of charge. 2 The Federal Council determines the terms of enforcement assistance.
Art. 291
312 If the parents neglect to take due care of the child, the court may order their debtors to make payment in whole or in part to the child's legal representative.
Art. 292
313 If the parents are persistently neglectful in their duty of maintenance, or if there are grounds to suspect that they are preparing to abscond or are dissipating or concealing their assets, the court may order them to furnish appropriate security for future child maintenance contributions.
Art. 293
314 1 Subject to the duty of relatives to provide support, public law determines who must bear the costs of maintenance if neither the parents nor the child may defray them.
2
Public law also governs the provision of advances to maintain the child if the parents fail to fulfil their duty of maintenance.
Art. 294
315 1 Foster parents are entitled to receive an appropriate fostering allowance unless otherwise agreed or clearly dictated by the circumstances.
2
Where children are fostered by close relatives or with a view to subsequent adoption there is a presumption that no remuneration is due.
311 Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
312 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
313 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
314 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
315 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
II. Enforcement 1. Enforcement assistance
2. Directions to
debtors
III. Security
G. Public law
H. Foster parents
Swiss Civil Code
90
210
Art. 295
316 1 Up to one year after the birth at the latest, the mother may file a claim against the father or his legal heirs for compensation:317 1. in respect of the confinement costs; 2. in respect of the costs of maintenance for at least four weeks prior to the birth and at least eight weeks thereafter; 3. in respect of other expenses rendered necessary by the pregnancy or confinement, including the initial equipment for the child.
2
On grounds of equity, the court may award partial or full compensation for such costs if the pregnancy ends prematurely.
3
Third-party payments to which the mother is entitled by law or by contract must be taken into consideration to the extent justified in the circumstances.
Section Three: Parental Responsibility318
Art. 296
319 1 Parental responsibility serves the best interests of the child.
2
Until such time as they attain the age of majority, children remain the joint parental responsibility of their father and mother.
3
Parents who are minors or subject to a general deputyship may not exercise parental responsibility. When the parents attain the age of majority, they are assigned parental responsibility. If the general deputyship is revoked, the child protection authority shall assign parental responsibility in a manner appropriate to the child's best interests.
Art. 297
320 1 If the parents have joint parental responsibility and one parent dies, the surviving parent retains sole parental responsibility.
316 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
317 Amended by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
318 Inserted by No I 1 of the FA of 25 June 1976 (AS 1977 237; BBl 1974 II 1). Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
319 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
320 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
J. Rights of the
unmarried
mother
A. Principles
Abis. Death of a
parent
Swiss Civil Code
91
210
2
If a parent who has sole parental responsibility dies, the child protection authority shall assign parental responsibility to the surviving parent or if a legal guardian is appointed for the child, to the person more suited to safeguarding the child's best interests.
Art. 298
321 1 In divorce proceedings or proceedings to protect the marital union, the court shall assign one parent sole parental responsibility if this is necessary to safeguard the child's best interests.
2
It may limit itself to regulating residence, contact or sharing of parenting duties if there is no prospect of the parents agreeing on these matters.
2bis
When regulating residence, contact and the sharing of parenting duties it shall take account of the right of the child to maintain regular personal relationships with both parents.322 2ter Where joint parental responsibility is awarded, with respect to the child's best interests, it shall consider the possibility of the child residing with both parents on an alternating basis, if this is requested by one of the parents or by the child.323 3 It shall request the child protection authority to appoint a legal guardian for the child if neither the mother nor the father can be expected to accept parental responsibility.
a324 1 If the parents are not married to each other and if the father recognises the child, or the parent-child relationship is established by court judgment but joint parental responsibility was not ordered at the time of the judgment, joint parental responsibility is established based on a joint declaration by the parents.
2
In the declaration, the parents confirm that they: 1. are prepared to accept joint responsibility for the child; and 2. have agreed on residence and contact or on the sharing of parenting duties and on the child maintenance contribution for the child.
321 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
322 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
323 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
324 Inserted by No I 4 of the FA of 26 June 1998 (AS 1999 1118; BBl 1996 I 1). Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
Ater. Divorce and
other marital
proceedings
Aquater. Recognition and court
declaration of
paternity I. Joint declaration by the
parents
Swiss Civil Code
92
210
3
Before making the declaration, the parents may seek advice from the child protection authority.
4
If the parents make the declaration at the same time as recognising paternity, the declaration is made to the civil registrar. A subsequent declaration must be made to the child protection authority at the child's domicile.
5
Unless and until the declaration has been made, the mother has sole parental responsibility.
b325 1 If a parent refuses to make a declaration on joint parental responsibility, the other parent may request the child protection authority at the child's domicile to intervene.
2
The child protection authority shall order joint parental responsibility, unless the mother should retain sole parental responsibility or sole parental responsibility should be assigned to the father in order to safeguard the child's best interests.
3
At the same time as deciding on parental responsibility, the child protection authority shall regulate any other matters in dispute. An action for payment of the maintenance contribution may be brought before the competent court; in such a case the court also decides on parental responsibility and other matters relating to the child.326 3bis In its decision on residence, contact and the sharing of parenting duties, the child protection authority shall take account of the right of the child to maintain regular personal relationships with both parents.327 3ter Where joint parental responsibility is awarded, with respect to the child's best interests, it shall consider the possibility of the child residing with both parents on an alternating basis, if this is requested by one of the parents or by the child.328 4 If the mother is a minor or subject to a general deputyship, the child protection authority shall assign parental responsibility to the father or appoint a legal guardian for the child, depending on which measure is more suitable to safeguard the child's best interests.
325 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
326 Second sentence amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
327 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
328 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
II. Decision of
the child
protection
authority
Swiss Civil Code
93
210
c329 If the court upholds a paternity action, it shall order joint parental responsibility unless the mother retains sole parental responsibility or sole parental responsibility is assigned to the father in order to safeguard the child's best interests.
d330 1 At the request of either parent, the child or ex officio, the child protection authority shall reassign parental responsibility if this is necessary to safeguard the child's best interests due to a substantial change in circumstances.
2
It may limit itself to regulating residence, contact or the sharing of parenting duties.
3
An action for a change to the maintenance payments may be brought to the competent court; in such a case the court may make a new ruling on parental responsibility and other matters relating to the child.331
e332 If the person who adopts the child cohabits with the child's mother or father, and there is a substantial change in the circumstances, the provision on the change of circumstances applies mutatis mutandis in the case of recognition and judgement of paternity.
Art. 299
333 Each spouse must give the other reasonable support in exercising parental responsibility over the latter's children and must represent the other spouse as circumstances require.
329 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
330 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
331 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
332 Inserted by No I of the FA of 17 June 2016 (Adoption), in force since 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
333 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
334 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
III. Paternity
action
IV. Change in
circumstances
Aquinquies.
Change in the
situation after
the adoption of a
stepchild in a
cohabitation
relationship
Asexies. Stepparents334
Swiss Civil Code
94
210
Art. 300
335 1 If a child is placed in foster care with third parties, unless the relevant orders provide otherwise, these third parties exercise parental responsibility over the child in loco parentis to the extent required for the proper fulfilment of their duties.
2
Foster parents must be consulted before any important decisions are taken regarding the child.
Art. 301
337 1 The parents raise and care for a child with his or her best interests in mind and take all necessary decisions unless the child has capacity to act.
1bis
The parent who is taking care of the child may decide alone if: 1. the matter is routine or urgent; 2. the other parent cannot be consulted without incurring unreasonable trouble or expense.338
2
The child owes his or her parents obedience; according to how mature the child is, the parents shall allow the child the freedom to shape his or her own life and, wherever feasible, take due account of the child's opinion in important matters.
3
The child is not permitted to leave the family home without the parents' consent, nor may he or she be unlawfully removed from them.
4
The parents give the child his or her first name.
a339 1 Parental responsibility includes the right to decide on the child's place of residence.
2
If parents exercise joint parental responsibility and if one parent wishes to change the child's place of residence, this requires the consent of the other parent or a decision of the court or the child protection authority if: a. the new place of residence is outside Switzerland; or 335 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
336 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
337 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
338 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
339 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
Asepties. Foster
parents336
B. Scope I. In general II. Deciding on
the place of
residence
Swiss Civil Code
95
210
b. the change of place of residence has serious consequences for the ability of the other parent to exercise parental responsibility and have contact.
3
If one parent has sole parental responsibility and if he or she wishes to change the child's place of residence, he must inform the other parent of this in good time.
4
A parent who wishes to change his or her own domicile has the same duty to provide information.
5
If required, the parents shall agree to modify the rules on parental responsibility, residence, contact and the child maintenance contribution in such a way as to safeguard the child's best interests. If they are unable to agree, the court or the child protection authority decides.
Art. 302
340 1 The parents must raise the child according to their circumstances and encourage and safeguard the child's physical, mental and moral development.
2
The parents must arrange for the child, especially if he or she has physical or learning disabilities, to receive an appropriate general and vocational education that corresponds as closely as possible to the child's abilities and inclinations.
3
To that end, the parents must co-operate as appropriate with school authorities and, where required, with public and charitable youth support agencies.
Art. 303
342 1 The parents are free to determine the child's religious upbringing.
2
Any agreement restricting this freedom is invalid.
3
Once a child is 16 years of age, he or she is free to decide his or her own religious denomination.
340 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
341 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
342 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
343 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
III. Upbringing341
IV. Religious
upbringing343
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Art. 304
344 1 By operation of law, the parents are vested with the power to represent the child in all dealings with third parties to the extent they have parental responsibility for the child.346 2
If both parents have parental responsibility, all third parties acting in good faith may assume that each parent acts with the other's consent.347 3 Parents acting as their child's representative may not provide any financial guarantees, establish any foundations or make gifts on behalf of the client, with the exception of customary occasional gifts.348
Art. 305
349 1 A child under parental responsibility may by his or her own acts establish rights and obligations and exercise strictly personal rights under the law of persons.351 2 The child is liable with all his or her assets for any obligations entered into, without regard to the parents' property rights.
Art. 306
352 1 Children with capacity of judgement who are under parental responsibility may, with their parents' consent, act for the family as a whole, but in so doing engage not themselves but their parents.353 2
If the parents are prevented from acting or if they have interests in a matter that conflict with those of the child, the child protection authority shall appoint a deputy or regulate the matter itself.354 344 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
345 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
346 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
347 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
348 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
349 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
350 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
351 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
352 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
353 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
354 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
V. Representation 1. In relation to
third parties a. In general345 b. Child's legal
status350
2. Within the
family community
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3
In the event of a conflict of interests, the parents' powers become automatically void by law in relation to the matter concerned.355
Art. 307
356 1 If the child's best interests are threatened and the parents are unwilling or unable to remedy the situation, the child protection authority must take all appropriate measures to protect the child.
2
The child protection authority has the same duty with regard to children placed with foster parents or otherwise living outside the family home.
3
In particular it is entitled to remind parents, foster parents or the child of their duties, issue specific instructions regarding care, upbringing or education and appoint a suitable person or agency with powers to investigate and monitor the situation.
Art. 308
357 1 Where circumstances so require, the child protection authority shall appoint a child deputy whose function is to help the parents look after the child by providing advice and practical support.
2
It may assign special powers to the deputy, in particular to represent the child in the paternity action, in safeguarding the child's right to child support and the child's other rights and in supervising contact.359 3 Parental responsibility may be restricted accordingly.
Art. 309
360
Art. 310
361 1 Where there is no other way to avert a threat to the child's best interests, the child protection authority must remove the child from the 355 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
356 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
357 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
358 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
359 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
360 Repealed by No I of the FA of 21 June 2013 (Parental Responsibility), with effect from 1 July 2014 (AS 2014 357; BBl 2011 9077).
361 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
362 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
C. Child
protection I. Appropriate measures
II. Deputyship358
III. Revocation
of the right to
decide on place
of residence362
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parents or from any third parties with whom he or she is staying and place the child in a suitable location.
2
At the request of the parents or the child, the child protection authority must do likewise if relations between them have deteriorated to the extent that it is no longer conscionable for the child to remain in the family home and provided no other practical remedy is available in the circumstances.
3
Where a child has lived for some length of time with foster parents, the child protection authority may forbid the parents to take the child back if such action might pose a serious risk to the child's development.
Art. 311
363 1 If other child protection measures have failed or offer little prospect of proving adequate, the child protection authority shall revoke parental responsibility:365 1.366 if the parents are unable to exercise parental responsibility as required on account of inexperience, illness, disability, absence, violent behaviour or other similar reasons; 2. if the parents have not cared for the child to any meaningful degree or have flagrantly violated their duties towards the child.
2
Where parental responsibility is withdrawn from both parents, a legal guardian is appointed for their children.
3
Unless expressly ordered otherwise, the withdrawal of parental responsibility is effective in respect of all the children, including those born subsequently.
Art. 312
367 The child protection authority shall withdraw parental responsibility:369 363 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
364 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
365 Amended by No I 2 of the FA of 19. Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
366 Amended by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
367 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
368 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
369 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
IV. Withdrawal
of parental
responsibility 1. Ex-officio364 2. With the
parents' consent368
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1. if the parents so request for good cause; 2. if the parents have consented to having the child adopted in future by unnamed third parties.
Art. 313
370 1 If circumstances change, the child protection measures in place must be adapted to suit the new situation.
2
On no account may parental responsibility be restored within less than one year of its withdrawal.
Art. 314
371 1 The provisions on the procedure before the adult protection authority apply mutatis mutandis.
2
In appropriate cases, the child protection authority may request the parents to attempt mediation.
3
If the child protection authority appoints a deputy, it shall state the tasks of the deputy and any restrictions on parental responsibility in the decision.
a372 1 The child is heard in person in an appropriate manner by the child protection authority or by a third party appointed for this purpose, unless this is inadvisable due to the child's age or other good cause.
2
The record of the hearing contains only the findings of relevance to the decision. The parents are informed of these findings.
3
A child capable of judgement may appeal against a decision to refuse a hearing.
abis 373 1 If necessary, the child protection authority shall order the child to be represented and appoint a person experienced in welfare and legal matters as the child's deputy.
370 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
371 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
372 Inserted by No II of the FA of 6 Oct. 1978 (AS 1980 31 35; BBl 1977 III 1). Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
373 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
V. Change in
circumstances
VI. Procedure 1. General 2. Hearing for
the child
3. Representation for the child
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2
The child protection authority shall consider the appointment of a representative in particular if: 1. the proceedings relate to the child's accommodation; 2. the parties file differing applications in relation to regulating parental responsibility or important contact issues.
3
The child's deputy may file applications and appeals.
b374 1 If the child must be committed to a secure institution or a psychiatric hospital, the adult protection provisions on care-related hospitalisation apply mutatis mutandis.
2
If the child is capable of judgement, he or she may petition the court directly.
Art. 315
375 1 Child protection measures are ordered by the child protection authorities at the child's domicile.377 2
If the child lives with foster parents or otherwise outside the parental family home or if there is risk in delay, responsibility also rests with the authorities of the place in which the child is currently staying.
3
If the latter authorities implement a child protection measure, they must inform the authority at the child's domicile.
a378 1 If the court is called on to rule on relations between the parents and the children in accordance with the provisions governing divorce or protection of the marital union, it must also order all necessary child protection measures and instruct the child protection authority to implement them.379 2 The court may also modify child protection measures already in place to take account of changes in circumstances.
374 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
375 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
376 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
377 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
378 Inserted by No I 1 of the FA of 25 June 1976 (AS 1977 237; BBl 1974 II 1). Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
379 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
4. Committal to
a secure
institution or
psychiatric
hospital
VII. Jurisdiction 1. In general376 2. In marital
proceedings a. Jurisdiction of the court
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3
However, the child protection authority retains the power:380 1. to continue child protection proceedings introduced prior to the court proceedings; 2. to order such measures as are required immediately to protect the child where the court is unlikely to be able to do so in good time.
b381 1 The court has jurisdiction to amend court orders regarding custody awards and child protection: 1. during divorce proceedings; 2. in proceedings to alter the divorce decree pursuant to the regulations governing divorce;
3. in proceedings to modify measures for protection of the marital union; the regulations governing divorce are applicable mutatis mutandis.
2
In all other cases jurisdiction lies with the child protection authority.382
Art. 316
383 1 Any person taking in foster children requires authorisation from and is under the supervision of the child protection authority at his domicile or some other body designated by the canton.
1bis
Where a child is fostered with a view to subsequent adoption, a single cantonal authority is responsible.384 2 The Federal Council enacts implementing regulations.
380 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
381 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
382 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
383 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
384 Inserted by Annex No. 2 of the FA of 22 June 2001 on the Hague Adoption Convention and Measures to Protect Children in respect of Inter-Country Adoption, in force since 1 Jan. 2003 (AS 2002 3988; BBl 1999 5795).
b. Amendment
of court orders
VIII. Supervision of foster
children
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210
Art. 317
385 The cantons issue such regulations as are required to ensure effective co-operation between the authorities and official bodies in the areas of child protection under civil law, the criminal law relating to young offenders and other youth support activities.
Section Four: Property of the Child386
Art. 318
387 1 As long as they have parental responsibility for the child, the parents have the right and the duty to administer the child's property.
2
If a parent dies, the surviving parent must file an inventory of the child's property with the child protection authority.388 3 If the child protection authority regards it as appropriate in view of the nature and extent of the child's property and the personal circumstances of the parents, it shall order an inventory to be prepared or regular accounts and reports to be submitted.389
Art. 319
390 1 The parents are permitted to use the income from the child's property for the child's maintenance, upbringing and education and, where equitable, also for the requirements of the household.
2
Any surplus accrues to the child's property.
Art. 320
391 1 Settlements, compensation and similar payments may be used in portions to fund the child's maintenance in accordance with its current requirements.
385 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
386 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
387 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
388 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
389 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
390 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
391 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
IX. Co-operation
in youth support
A. Management
B. Use of
income
C. Drawing on
the child's assets
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2
Where necessary to meet the costs of maintenance, upbringing or education, the child protection authority may permit the parents to make use of other parts of the child's assets in specific amounts.
Art. 321
392 1 The parents are not permitted to draw on revenue from the child's assets if, when given to the child, they were designated as interestbearing investments or savings or use of the revenue by the parents was expressly excluded.
2
Management by the parents is excluded only where expressly so provided when the child is endowed with the assets.
Art. 322
393 1 By testamentary disposition the child's statutory inheritance entitlement may also be excluded from management by the parents.
2
If the testator appoints a third party to administer the bequest, the child protection authority may require the latter to carry out periodic accounting and reporting.
Art. 323
394 1 The child manages and enjoys the benefits of all fruits of his or her own labour and of those of his or her assets that are released by his or her parents for use in the child's professional or business activities.
2
If the child lives with its parents in the family home, they may require the child to make an appropriate contribution to his or her maintenance.
Art. 324
395 1 Where there is no adequate guarantee that the child's property will be diligently managed, the child protection authority takes the necessary measures to protect it.
2
In particular, the child protection authority may issue instructions regarding such management and, where the periodic accounting and reporting is insufficient, may order the parents to deposit the property or furnish security.
392 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
393 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
394 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
395 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
D. Freely
disposable
property of the
child I. Endowments II. Statutory
entitlement
III. Employment
income,
professional and
business assets
E. Protection of
the child's
property I. Appropriate measures
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3
Procedure and jurisdiction are regulated mutatis mutandis by the provisions governing child protection.
Art. 325
396 1 If there is no other way to avert a threat to the child's property, the child protection authority shall appoint a child welfare advocate to manage it.
2
The child protection authority does likewise if a child's property that is not managed by the parents is threatened.
3
Where there is serious concern that income from the child's property or the amounts designated for use or released to cover the child's needs are not being used as intended, the child protection authority may also appoint a child welfare advocate to manage those assets.
Art. 326
397 On termination of parental responsibility or the parents' management, the parents must hand over the child's property together with a final statement of account to the adult child or to the child's legal representative.
Art. 327
398 1 The parents are liable to make restitution as if they were authorised agents.
2
The parents must surrender the proceeds of any property alienated in good faith.
3
The parents do not owe compensation for any authorised expenditures on the child or the household.
Section Five:399 Minors subject to Guardianship
a If a child is not subject to parental responsibility, the child protection authority shall appoint a guardian for the child.
396 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
397 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
398 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
399 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
II. Withdrawal of
management
F. End of asset
management I. Return of property
II. Liability
A. Principle
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b A child subject to guardianship has the same legal status as a child subject to parental responsibility.
c 1 A guardian has the same rights as the parents.
2
The provisions on adult protection, and in particular on appointing a and acting as a deputy and the involvement of the adult protection authority apply mutatis mutandis.
3
If the child must be committed to a secure institution or psychiatric hospital, the adult protection provisions on care-related hospitalisation apply mutatis mutandis.
Title Nine: Family Community Chapter One: Duty of Assistance
Art. 328
400 1 A person living in financial comfort has a duty to lend assistance to any lineal relatives of older or younger generations who would suffer hardship without such assistance.
2
The duty of maintenance of parents, spouses and registered partners is reserved.401
Art. 329
1 The claim for assistance is directed against those with a duty to provide it in order of their inheritance entitlements; the amount is dependent on the degree of assistance required to maintain the indigent claimant and on the circumstances of the person obliged to provide it.
1bis
No claim for support may be made if the hardship arises from a restriction in the ability to pursue gainful employment owing to the care of one's own children.403 400 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
401 Amended by Annex No. 8 of the Federal Act on Partnerships of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685; BBl 2003 1288).
402 Amended by No I 2 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
403 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
B. Legal status I. Of the child II. Of the
guardian
A. Persons
obliged to lend
assistance
B. Scope and
enforcement of
the claim for
assistance402
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2
Where in the light of special circumstances the court deems it inequitable to require a person to fulfil his duty of assistance, the court may restrict such duty or revoke it entirely.404 3
The provisions governing child maintenance entitlement and the transfer of such entitlement to the state authority are applicable mutatis mutandis.405
Art. 330
1 Foundlings are maintained by the commune in which they have become naturalised.
2
If a foundling's parentage is established, the commune may require those relatives with a duty of assistance and, as a last recourse, the state authority under such duty to compensate it for the costs incurred in maintaining the foundling.
Chapter Two: Authority within the Household
Art. 331
1 Where by law, agreement or family custom persons living in common household have a head of the family, such person holds authority within the household.
2
The authority extends over all persons living in the household, whether relatives by blood406 or by marriage or employees or persons in a similar position based on a contractual relationship.407
Art. 332
1 The house rules to which the household members are subject must take due account of the interests of all involved.
2
In particular, the household members must be allowed the freedom required for their education, occupation and religious practices.
3
All property brought in by the household members must be kept safe and sound by the head of the family with the same care and attention given to his own property.
404 Amended by No I 2 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
405 Amended by No I 2 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
406 Amended by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
407 Amended by No II Art. 2 No. 2 of the FA of 25 June 1971, in force since 1 Jan. 1972 (AS 1971 1465; BBl 1967 II 241).
C. Maintenance
of foundlings
A. Requirement
B. Effect I. House rules and welfare
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210
Art. 333
1 If damage is caused by a member of the household who is a minor, suffers from a mental disability, is subject to a general deputyship, or is mentally ill, the head of the family is liable unless he can show that his supervision of the household was as diligent as would normally be expected in the circumstances prevailing.408 2 The head of the family is obliged to ensure that the condition of a household member who suffers from a mental disability or a mental illness does not result in risk or injury to himself or to others.409 3 Where necessary, the head of the family must notify the competent authority with a view to having the requisite precautionary measures put in place.
Art. 334
410 1 Adult children or grandchildren who have contributed their labour or income to parents or grandparents with whom they live in a common household are entitled to suitable compensation in return.411 2 In the event of dispute the court determines the amount of compensation, the security required and the payment method.
bis 412 1 The compensation due to children or grandchildren may be claimed on the debtor's death.
2
It may also be claimed during the debtor's lifetime if his property is distrained or he is declared bankrupt, the common household ceases to exist or the business changes hands.
3
The claim is not subject to a statutory time limit, but must be brought at the latest on division of the deceased debtor's estate.
408 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
409 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
410 Amended by No I 1 of the FA of 6 Oct. 1972, in force since 15 Feb. 1973 (AS 1973 93; BBl 1970 I 805, 1971 I 737).
411 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
412 Inserted by No I 1 of the FA of 6 Oct. 1972, in force since 15 Feb. 1973 (AS 1973 93; BBl 1970 I 805, 1971 I 737).
II. Liability
III. Claims of
children and
grandchildren 1. Requirements 2. Asserting
claims
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210
Chapter Three: Family Property
Art. 335
1 A body of assets may be tied to a family by means of a family foundation created under the law of persons or inheritance law in order to meet the costs of raising, endowing or supporting family members or for similar purposes.
2
It is no longer permitted to establish a fee tail.
Art. 336
Members of a family may tie a body of assets to the family by placing
all or part of an inheritance or other property under joint ownership in undivided shares.
Art. 337
The agreement establishing joint ownership in undivided shares is
valid only if done as a public deed signed by all co-owners or their representatives.
Art. 338
1 Joint ownership in undivided shares may be constituted for a limited or indefinite duration.
2
If constituted for an indefinite duration, it may be terminated by any co-owner subject to six months' notice.
3
Where the co-owned asset is an agricultural enterprise, such notice must always expire on a spring or autumn date in accordance with local custom.
Art. 339
1 Joint ownership in undivided shares binds the co-owners together in common economic activity.
2
Unless otherwise provided, they enjoy equal rights in the co-owned property.
3
For the duration of their joint ownership in undivided shares, they may neither seek a division of the property nor dispose of their own share.
Art. 340
1 The affairs of the joint ownership in undivided shares are regulated by all the co-owners acting collectively.
A. Family
foundations
B. Ownership in
undivided shares I. Formation 1. Authority 2. Form
II. Duration
III. Effect 1. Type of ownership
2. Management
and representation a. In general
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210
2
Each co-owner may take ordinary administrative actions on his own initiative.
Art. 341
1 The co-owners may appoint one of their number to act as their manager.
2
The manager represents the co-owners in all external dealings and directs their economic activities.
3
Where representation by the other co-owners is excluded, such exclusion may be invoked against third parties acting in good faith only if the sole representative is entered in the commercial register.
Art. 342
1 The property under joint ownership in undivided shares is owned collectively by all the co-owners.
2
The co-owners are jointly and severally liable for debts encumbering such property.
3
Except where otherwise agreed, all property belonging to a co-owner besides that owned collectively in undivided shares, and all property inherited or acquired in some other manner without valuable consideration during the co-ownership is the personal property of that coowner.
Art. 343
Joint ownership in undivided shares is dissolved: 1. by agreement or notice of termination; 2. on expiry of the period for which ownership in undivided shares was established, providing it is not tacitly renewed; 3. on realisation of a co-owner's share of the property that has been distrained;
4. if a co-owner is declared bankrupt; 5. at the request of a co-owner for good cause.
Art. 344
1 If one co-owner gives notice to terminate joint ownership in undivided shares or is declared bankrupt, or if his share is realised after having been distrained, joint ownership in undivided shares may be maintained by the other co-owners provided they reach a settlement with him or his creditors.
b. Manager's
powers
3. Common
property and
personal
property
IV. Dissolution 1. Grounds 2. Notice,
insolvency,
marriage
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210
2
A co-owner who marries is entitled to request such settlement without giving notice of termination.
Art. 345
1 On the death of a co-owner, heirs who are not also co-owners are entitled only to settlement of his share.
2
Where he is survived by issue entitled to inherit his share, with the consent of the other co-owners such issue may accede to the joint ownership in undivided shares in his place.
Art. 346
1 Division of the collectively owned property or settlement of a withdrawing co-owner's share is based on the condition of the property when the grounds for dissolution arose.
2
Its implementation may not be requested at an inopportune time.
Art. 347
1 The co-owners may entrust the exploitation and representation of the collectively owned property to one of their number on condition that he pay each co-owner a share of the net profit annually.
2
Unless otherwise agreed, such share is determined equitably on the basis of the average revenues generated by the property over a sufficiently long period and with due regard to the work done by the person managing it.
Art. 348
1 If the collectively owned property is not properly managed or the managing co-owner fails to meet his obligations towards the other coowners, the joint ownership in undivided shares may be dissolved.
2
Where there is good cause, a co-owner may request the court to authorise him to assume joint management of the property, taking due consideration of the provisions governing the division of the estate.
3
In all other respects, revenue-generating joint ownership in undivided shares is subject to the provisions governing the joint ownership in undivided shares of a collectively managed business.
3. Death of a coowner
4. Division
V. Revenuegenerating co-
ownership 1. Nature 2. Special
grounds for
dissolution
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Art. 349-358413
Art. 359
414
Art. 360
1 A person with capacity to act may instruct a natural person or legal entity to take responsibility for his or her personal care or the management of his or her assets or to act as his or her legal agent in the event that he or she is no longer capable of judgement.
2
He or she must define the tasks that are to be assigned and may issue instructions on how these tasks are to be fulfilled.
3
He or she may provide for a replacement for the event that the appointee is not suitable for the tasks, does not accept the mandate or terminates the mandate.
Art. 361
1 The advance care directive must be executed in holographic form or publicly authenticated.
2
A holograph advance care directive must be handwritten, dated and signed by the client from beginning to end.
3
On request, the Civil Register Office shall record in the central database the fact that a person has executed an advance care directive and the place where it is kept. The Federal Council shall issue the required provisions, in particular on the access to the data.
Art. 362
1 The client may revoke the advance care directive at any time in either of the ways provided for its execution.
413 Repealed by No I 4 of the FA of 26 June 1998, with effect from 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
414 Repealed by No II 21 of the FA of 15 Dec. 1989 on Approval of Cantonal Decrees by the Federal Government, with effect from 1 Feb. 1991 (AS 1991 362; BBl 1988 II 1333).
415 Amended by No I 1 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
A. Principle
B. Execution and
revocation I. Execution II. Revocation
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2
He or she may also revoke the advance care directive by destroying the document.
3
If he or she executes a new advance care directive without expressly revoking the previous directive, the new advance care directive replaces the previous one unless it is clearly no more than an amendment to the same.
Art. 363
1 Where the adult protection authority learns that a person is no longer capable of judgement, but it is unaware if there is an advance care directive, it shall enquire at the Civil Register Office.
2
If there is an advance care directive, the adult protection authority shall verify if:
1. the directive has been validly executed; 2. the requirements for its effectiveness are met; 3. the appointee is fit for his or her duties; and 4. if further adult protection measures are required.
3
If the appointee accepts the advance care directive, the authority shall advise him or her of his or her obligations under the provisions of the Code of Obligations416 on agency contracts and issue him or her with a formal document stating his or her powers.
Art. 364
The appointee may request the adult protection authority to interpret
the advance care directive and to add clarification to secondary points.
Art. 365
1 The appointee shall represent the client in accordance with the advance care directive and fulfil his or her duties with due care in accordance with the provisions of the Code of Obligations417 on agency contracts.
2
Where transactions must be carried out that are not covered by the advance care directive, or if the appointee has an interest in a matter that conflicts with that of the client, the appointee shall notify the adult protection authority immediately.
3
In the event of a conflict of interest, the powers of the appointee cease to apply by law.
416 SR
220
417 SR
220
C. Decision on
effectiveness and
acceptance
D. Interpretation
and clarification
E. Fulfilment
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Art. 366
1 If the advance care directive has no instructions on the remuneration of the appointee, the adult protection authority shall specify appropriate remuneration provided this appears justified given the extent of the duties or if the services provided by the appointee are normally remunerated.
2
The remuneration and the required expenses are charged to the client.
Art. 367
1 The appointee may terminate the advance care directive at any time subject to giving two months' written notice to the adult protection authority.
2
For good cause, the appointee may terminate the directive without notice.
Art. 368
1 If the interests of the client are endangered or no longer protected, the adult protection authority may take the required measures ex officio or at the request of a closely associated person.
2
It may in particular issue the appointee with instructions, order the appointee to file an inventory, regular accounts and reports or revoke all or some of his or her powers.
Art. 369
1 If the client regains the capacity of judgement, the advance care directive shall by law cease to have effect.
2
If the interests of the client are endangered thereby, the appointee must continue to carry out the tasks assigned to him or her until the client can safeguard his or her own interests.
3
The appointee is bound as if the directive still applies by transactions that he or she enters into before he or she learns that the directive has ceased to apply.
Subsection Two: The Patient Decree
Art. 370
1 A person who is capable of judgement may specify in a patient decree which medical procedures he or she agrees or does not agree to in the event that he or she is no longer capable of judgement.
F. Remuneration
and expenses
G. Termination
H. Intervention
by the adult
protection
authority
I. Regaining the
capacity of
judgement
A. Principle
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2
He or she may also designate a natural person who in the event that he or she is no longer capable of judgement should discuss the medical procedures with the attending doctor and decide on his or her behalf. He or she may issue instructions to this person.
3
He or she may issue alternative instructions for the event that the designated person is not suitable for the tasks, does not accept the mandate or terminates the mandate.
Art. 371
1 The patient decree must be executed in writing, and be dated and signed.
2
Any person who has executed a patient decree may have this fact and the place where it is kept entered on his or her health insurance card. The Federal Council shall issue the required provisions, in particular on the access to the data.
3
The provision on revoking an advance care directive applies mutatis mutandis.
Art. 372
1 If the patient lacks capacity of judgement and it is not known if there is a patient decree, the attending doctor shall ascertain the position from the health insurance card. The foregoing does not apply to urgent cases.
2
The doctor shall comply with the patient decree unless it violates statutory regulations or there is reasonable doubt that it is based on the patient's free will or still corresponds to his or her presumed will.
3
The doctor shall make a note in the patient records of any reasons why the patient decree was not complied with.
Art. 373
1 Any person closely related to the patient may contact the adult protection authority in writing and claim that: 1. the patient decree is not being complied with; 2. the interests of the patient are being endangered or no longer safeguarded;
3. the patient decree is not based on the patient's free will.
2
The provision on intervention by the adult protection authority in the case of an advance care directive applies mutatis mutandis.
B. Execution and
revocation
C. Loss of
capacity of
judgement
D. Intervention
by the adult
protection
authority
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Section Two: Statutory Measures for Persons lacking Capacity of Judgement Sub-Section One: Representation by the Spouse or Registered Partner
Art. 374
1 Any person who as spouse or registered partner cohabits with a person who is no longer capable of judgement or who regularly and personally provides that person with support has a statutory right to act as that person's representative if there is no advance care directive and no deputy has been appointed.
2
The right to act as representative includes: 1. all legal acts that are normally required to meet the need for support;
2. due management of income and other assets; and 3. the right to open and deal with post, if necessary.
3
For legal acts involving exceptional asset management, the spouse or the registered partner must obtain the consent of the adult protection authority.
Art. 375
The exercise of the right to act as representative is governed by the
provisions of the Code of Obligations418 on agency contracts mutatis mutandis.
Art. 376
1 If there is any doubt as to whether the requirements for representation are met, the adult protection authority shall decide on the right to act as representative and if required shall provide the spouse or the registered partner with a document stating his or her powers.
2
If the interests of the person lacking capacity of judgement are endangered or no longer safeguarded, the adult protection authority shall at the request of a closely associated person or ex officio revoke the power of the spouse or registered partner to act as representative partly or fully and shall appoint a deputy.
418 SR
220
A. Requirements
for and extent of
the right to act as representative
B. Exercise of
the right to act as representative
C. Intervention
by the adult
protection
authority
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Sub-Section Two: Representation in relation to Medical Procedures
Art. 377
1 If a person lacking capacity of judgement has not given instructions on treatment in a patient decree, the attending doctor shall plan the required treatment in consultation with the person entitled to act as representative in relation to medical procedures.
2
The doctor shall inform the representative about all the important aspects of the planned medical procedures, and in particular about the reasons therefor, their purpose, form, methods, risks, side effects and costs, the consequences of not carrying out the treatment and any alternative treatment options.
3
If possible, the person lacking capacity of judgement shall also be involved in making the decision.
4
The treatment plan shall be adapted to ongoing developments.
Art. 378
1 The following persons are entitled in the following order to represent the person lacking capacity of judgement and to grant or refuse consent to the planned out-patient or in-patient measures: 1. a person appointed in a patient decree or in an advance care directive;
2. a deputy with a right to act as representative in relation to medical procedures;
3. any person who as a spouse or registered partner cohabits with the person lacking capacity of judgement or who regularly and personally provides him or her with support; 4. any person who cohabits with the person lacking capacity of judgement or who regularly and personally provides him or her with support; 5. issue who regularly and personally provide the person lacking capacity of judgement with support; 6. the parents, if they regularly and personally provide the person lacking capacity of judgement with support; 7. siblings, if they regularly and personally provide the person lacking capacity of judgement with support.
2
If two or more persons have the right to act as representative, the doctor, acting in good faith, may require that each act with the agreement of the others.
A. Treatment
plan
B. The representative
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3
If a patient decree contains no instructions, the representative shall decide according to the presumed wishes and interests of the person lacking capacity of judgement.
Art. 379
In urgent cases, the doctor may carry out medical procedures according to the presumed wishes and interests of the person lacking capacity of judgement.
Art. 380
The treatment of a mental disorder of a person lacking capacity of
judgement in a psychiatric hospital is governed by the provisions on care-related hospitalisation.
Art. 381
1 The adult protection authority shall establish a representative deputyship if there is no representative available or the representative does not wish to exercise the right to act.
2
It shall appoint a representative or establish a representative deputyship if:
1. it is unclear who has a right to act as representative 2. the persons with a right to act as representative are unable to agree; or
3. the interests of the person lacking capacity of judgement are endangered or no longer safeguarded.
3
It shall act at the request of the doctor, another closely associated person or ex officio.
Sub-Section Three: Stays in Residential or Care Institutions
Art. 382
1 If a person lacking capacity of judgement is cared for in a residential or nursing institution for a longer period, a written care agreement must be drawn up to regulate the services that the institution provides and the costs thereof.
2
In determining the services provided by the institution, account must be taken of the wishes of the person concerned as far as possible.
3
Responsibility for representing the person lacking capacity of judgement in concluding, amending or terminating the care agreement C. Urgent cases
D. Treatment of
a mental disorder
E. Intervention
by the adult
protection
authority
A. Care agreement
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is governed mutatis mutandis by the provisions on representation relating to medical procedures.
Art. 383
1 The residential or nursing institution may restrict the freedom of movement of the person lacking capacity of judgement only if less stringent measures are clearly insufficient or prove to be so and the measure serves to: 1. prevent serious danger to the life or physical integrity of the client or third parties; or 2. remedy serious disruption to life in and around the institution.
2
Before his or her freedom of movement is restricted, it shall be explained to the person concerned what is happening, why the measure has been ordered, how long it will probably last and who will be responsible for the person concerned during this period. The foregoing does not apply in emergencies.
3
An order to restrict freedom of movement shall be revoked as soon as possible and in every case reviewed regularly to ascertain whether it is still required.
Art. 384
1 A record shall be kept of any measure restricting freedom of movement. This shall contain in particular the names of the person ordering the measure, the purpose, the nature and the duration the measure.
2
The representative in relation to medical procedures shall be notified of the measure restricting freedom of movement and may inspect the record at any time.
3
The persons supervising the residential or nursing institution shall also have a right to inspect the record.
Art. 385
1 The person concerned or a closely related person may submit a written request at any time for the adult protection authority at the location of the institution to intervene in relation to a measure restricting freedom of movement.
2
If the adult protection authority establishes that the measure fails to meet the statutory requirements, it shall amend the measure, revoke it or order an official adult protection measure. If necessary, it shall notify the institution's supervisory authority.
3
Any request for an assessment to be made by the adult protection authority shall be passed on to the authority immediately.
B. Restriction of
freedom of
movement I. Requirements II. Records and
Information
III. Intervention
by the adult
protection
authority
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Art. 386
1 The residential or nursing institution shall protect the privacy of a person lacking capacity of judgement and where possible encourage contacts with persons outside the institution.
2
If no one outside the institution expresses an interest in the client, the residential or nursing institution shall notify the adult protection authority.
3
The freedom to choose one's doctor shall be respected unless there is good cause for not doing so.
Art. 387
The cantons shall make residential and care institution in which person lacking capacity of judgement are cared for subject to supervision, unless federal regulations already guarantee supervision.
Title Eleven: Official Measures Section One: General Principles
Art. 388
1 Official adult protection measures shall aim to secure the best interests and protection of persons in need.
2
Where possible, they should preserve and encourage the independence of the persons concerned.
Art. 389
1 The adult protection authority shall order a measure if: 1. support for the person in need offered by his or her family, other closely related persons or private or public services is or proves to be insufficient; 2. where the person in need is no longer capable of judgement, he or she has failed to make any or sufficient arrangements for his or her own care and the statutory measures are insufficient.
2
Any official measure must be necessary and suitable.
C. Protection of
privacy
D. Supervision
of residential and
care institution
A. Aim
B. Subsidiarity
and proportionality
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Section Two: The Deputyship Sub-Section One: General Provisions
Art. 390
1 The adult protection authority shall establish a deputyship if an adult:
1. due to a learning disability, a mental disorder or a similar inherent debility is wholly or partially unable to manage his or her own affairs;
2. due to a temporary loss of the capacity of judgement or temporary absence is neither able to take care of matters that must be dealt with, nor has appointed a representative.
2
Account must be taken of the burden on and the protection of family members and third parties.
3
The deputyship shall be established at the request of the person concerned (the client) or a closely associated person or ex officio.
Art. 391
1 The adult protection authority shall define the scope of the deputyship's responsibilities according to the needs of the client.
2
The scope of responsibilities shall relate to personal care, the management of his or her assets or legal matters.
3
Without the consent of the client, the deputy may only open his or her post or enter his or her residence if the adult protection authority has expressly granted the power to do so.
Art. 392
If establishing a deputyship is clearly a disproportionate measure due
the extent of the work involved, the adult protection authority may: 1. do what is required itself, and in particular consent to a transaction;
2. instruct third parties to carry out individual tasks; or 3. designate a suitable person or agency that must be consulted and informed on specific matters.
A. Requirements
B. Scope of
responsibilities
C. Dispensing
with a deputyship
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Sub-Section Two: Types of Deputyship
Art. 393
1 An assistance deputyship is established with the consent of the person in need if he or she needs assistance in order to deal with certain matters.
2
The assistance deputyship does not limit the capacity of the client to act.
Art. 394
1 A representative deputyship is established if the person in need is unable to deal with certain matters and therefore must be represented.
2
The adult protection authority may limit the capacity of the client to act accordingly.
3
Even if his or her capacity to act has not been limited, the client is bound by the acts of the deputy.
Art. 395
1 If the adult protection authority establishes a representative deputyship to manage assets, it shall specify the assets to be managed by the deputy. It may make all or part of the income, all or part of the capital or all or part of the income and capital subject to the deputy's management.
2
The management powers also cover savings from the managed income or the revenue from the managed capital unless the adult protection authority provides otherwise.
3
Without limiting the capacity of the client to act, the adult protection authority may prohibit him or her from accessing individual assets.
4
If the adult protection authority prohibits the client from disposing of heritable property, it must arrange for a note to be made in the land register.
Art. 396
1 An advisory deputyship shall be established if the client requires for his or her own protection that certain acts be made subject to the consent of the deputy.
2
The client's capacity to act shall thus be limited accordingly by law.
Art. 397
Assistance, representative and advisory deputyships may be combined
with each other.
A. Assistance
deputyship
B. Representative deputyship I. In general
II. Asset
management
C. Advisory
deputyship
D. Combination
of deputyships
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Art. 398
1 A general deputyship is established if a person, in particular due to permanent loss of capacity of judgement, is in particular need.
2
It covers all aspects of personal care, management of assets and legal matters.
3
The client's capacity to act is revoked by law.
Sub-Section Three: End of the Deputyship
Art. 399
1 The deputyship ends by law on the death of the client.
2
The adult protection authority shall terminate a deputyship at the request of the client or of a closely associated person or ex officio as soon as there is no reason for it to continue.
Sub-Section Four: The Deputy
Art. 400
1 The adult protection authority shall appoint as deputy a natural person who has the personal aptitude and knowledge to carry out the planned tasks, who has the time required to do so and who can carry out the tasks in person. Where circumstances require, it may appoint two or more persons.
2
The appointed person is obliged to accept the deputyship unless there is good cause for not doing so.
3
The adult protection authority shall ensure that the deputy receives the instructions, advice and support that he or she requires
Art. 401
1 If the client proposes someone as his or her deputy, the adult protection authority shall agree to the proposal provided the person proposed is suitable and is prepared to accept the deputyship 2
It shall if possible take account of the wishes of family members or other closely associated persons.
3
If the client rejects a specific person as the deputy, the adult protection authority shall respect this wish provided it is reasonable.
E. General
deputyship
A. Appointment I. General requirements
II. Wishes of the
client or his or
her closely
associated
persons
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Art. 402
1 If the adult protection authority appoints two or more persons as deputies, it shall specify whether their tasks should be carried out jointly or who is responsible for which tasks.
2
Two or more deputies may be required to carry out their tasks jointly only if they agree to do so.
Art. 403
1 If the deputy is unable to act or if the deputy's interests conflict with those of the client, the adult protection authority shall appoint a substitute deputy or regulate the matter itself.
2
In the event of a conflict of interests, the powers of the deputy cease to apply by law in the relevant matter.
Art. 404
1 The deputy is entitled to appropriate remuneration and to the reimbursement of necessary expenses from the assets of the client. In the case of professional deputies, the remuneration is paid and expenses reimbursed by the employer.
2
The adult protection authority determines the level of remuneration.
It takes account in particular of the extent and the complexity of the tasks assigned to the deputy. 3 The cantons shall issue implementing provisions and rules on remuneration and reimbursing expenses if they cannot be paid out of the assets of the client.
Sub-Section Five: Deputyship Tasks
Art. 405
1 The deputy shall obtain the information required to fulfil his or her tasks and shall make personal contact with the client.
2
If the deputyship involves asset management, the deputy shall immediately make an inventory of the assets to be managed in cooperation with the adult protection authority.
3
If justified in the circumstances, the adult protection authority may order a public inventory to be made. This has the same effect for creditors as a public inventory under the law of succession.
4
Third parties are obliged to provide all the information required for the inventory to be made.
III. Appointment
of two or more
persons
B. Incapacity
and conflict of
interests
C. Remuneration
and expenses
A. Assumption
of office
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Art. 406
1 The deputy shall carry out his or her tasks in the interests of the client, take account of the client's opinions, where possible, and respect the client's desire to organise his or her life in a way that corresponds to his or her abilities and accords with his or her wishes and ideas.
2
The deputy shall try to develop a relationship of mutual trust with the client and to prevent any deterioration in the client's debility or to reduce the effect thereof.
Art. 407
Even if his or her capacity to act has been revoked, a client who is
capable of judgement may through his or her own acts establish rights and obligations under the law of persons, and exercise strictly personal rights.
Art. 408
1 The deputy shall manage the assets with due care and carry out all the legal acts connected with their management.
2
In particular the deputy may: 1. accept payments due to the client by third parties thus discharging their obligations;
2. pay debts where appropriate; 3. represent the client in attending to his or her everyday needs, if necessary.
3
The Federal Council shall issue provisions on the investment and safe custody of assets.
Art. 409
The deputy shall provide the client with an allowance from the client's
assets which the client is free to spend.
Art. 410
1 The deputy shall keep accounts and submit them to the adult protection authority for approval at regular intervals specified by the authority, and at least every two years.
2
The deputy shall explain the accounts to the client and provide him or her with a copy on request.
B. Relationship
with the client
C. Client's
autonomy
D. Asset
management I. Tasks II. Personal
allowance
III. Accounts
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Art. 411
1 The deputy shall submit a report on the client's situation and the deputyship to the adult protection authority as often as necessary, but at least every two years.
2
The deputy shall if possible consult the client when preparing the report and provide the client with a copy request.
Art. 412
1 The deputy may not provide any financial guarantees, establish any foundations or make gifts on behalf of the client, with the exception of customary occasional gifts.
2
Assets that are of special value to the client or his or her family shall not be disposed of if possible.
Art. 413
1 In fulfilling his or her tasks, the deputy shall have the same duty of care as an agent under the provisions of the Code of Obligations419.
2
The deputyship is subject to a duty of confidentiality unless this is contrary to overriding interests.
3
Third parties must be notified of the existence of the deputyship provided this is required for the deputy to duly fulfil his or her tasks.
Art. 414
The deputy shall notify the adult protection authority immediately of
any circumstances that require the measure to be amended or make the termination of the deputyship possible.
Sub-Section Six: Role of the Adult Protection Authority
Art. 415
1 The adult protection authority shall examine the accounts and grant or refuse approval thereof; if necessary, they shall require the accounts to be corrected.
2
It shall examine the report and, if necessary, require it to be amended.
3
If necessary, it shall take measures to safeguard the interests of the client appropriately.
419 SR
220
E. Reporting
F. Special
transactions
G. Duties of care
and confidentiality
H. Amendment
of conditions
A. Examination
of accounts and
report
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Art. 416
1 The consent of the adult protection authority is required before the deputy may carry out any of the following transactions on behalf of the client: 1. liquidation of the household, terminating the lease on a dwelling where the client lives;
2. long-term contracts for the client's accommodation; 3. acceptance or renunciation of a inheritance if an express declaration is required therefor, as well as contracts of succession and contracts dividing an estate;
4. the acquisition, sale, pledge and other burdening of immovable property and the construction of buildings that goes beyond ordinary administrative activities;
5. the acquisition, sale and pledge of other assets and the creation of a usufruct where such transactions do not fall under the conduct of ordinary administration and management; 6. the acceptance and granting of substantial loans, entering into bill-of-exchange-related liabilities; 7. annuity payments and similar benefits as well as life assurance, provided these do not form part of an occupational pension in connection with a contract of employment;
8. the takeover or liquidation of a business, involvement in a company with personal liability or a substantial capital participation; 9. declaration of inability to pay, conduct of legal proceedings, conclusion of a settlement, an arbitration agreement or a composition agreement, subject to the reservation of provisional measures by the deputy in cases of urgency.
2
The adult protection authority's consent is not required if a client who is capable of judgement grants his or her consent and his or her capacity to act is not limited by the deputyship.
3
Contracts between the deputy and the client shall always require the adult protection authority's consent other than in the case of assignments issued by the client that do not involve the payment of a fee.
Art. 417
The adult protection authority may for good cause order that other
transactions should require its consent.
B. Transactions
requiring consent I. By law II. By order
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Art. 418
If a transaction has been entered into without the required consent of
the adult protection authority, this shall only affect the client to the extent provided for under the provisions of the law of persons on lack of consent from a legal representative.
Sub-Section Seven: Intervention by the Adult Protection Authority
Art. 419
The client, a closely related person or any person with a legitimate
interest may call on the adult protection authority to intervene in relation to acts or omissions by the deputy or by a third party or agency to which the adult protection authority has issued an assignment.
Sub-Section Eight: Special Provisions for Family Members
Art. 420
If the client's spouse, registered partner, parents, issue, sibling, or de
facto life partner is appointed deputy, the adult protection authority may wholly or partly absolve the deputy of the obligations to prepare an inventory, submit regular reports and accounts, and obtain consent for specific transaction if this is justified by the circumstances.
Sub-Section Nine: Termination of the Office of Deputy
Art. 421
The office of deputy terminates by law: 1. on expiry of a term of office set by the adult protection authority, unless the deputy is confirmed in office;
2. with the end of the deputyship; 3. with termination of employment as a professional deputy; 4. in the event that the deputy is made subject to a deputyship, becomes incapable of judgement, or dies.
III. Lack of
consent
A. By law
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Art. 422
1 The deputy may request to be discharged at the earliest after serving a term of four years.
2
Prior to this, the deputy may request to be discharged for good cause.
Art. 423
1 The adult protection authority shall discharge the deputy if: 1. he or she is no longer suitable to carry out the tasks; 2. there is other good cause for his or her discharge.
2
The client or a closely associated person may request that the deputy be discharged.
Art. 424
The deputy must continue with transactions that cannot be postponed
until a successor takes over office, unless the adult protection authority orders otherwise. This provision does not apply to a professional deputy.
Art. 425
1 When the term of office ends, the deputy shall submit a final report to the adult protection authority and if applicable file the final accounts. The adult protection authority may waive this requirement for professional deputies if the employment relationship ends.
2
The adult protection authority shall examine and approve the final report and the final accounts in the same way as the regular reports and accounts.
3
It shall pass on the final report and final accounts to the client or his or her heirs and if applicable to the new deputy and shall at the same time draw the attention of these persons to the provisions on accountability.
4
It shall also inform them whether it exonerated the deputy or refused to approve the final report or the final accounts.
Section Three: Care-Related Hospitalisation
Art. 426
1 A person suffering from a mental disorder or mental disability or serious neglect (the patient) may be committed to an appropriate institution if the required treatment or care cannot be provided otherwise.
B. Discharge I. At the deputy's request
II. Other cases
C. Continuation
of transactions
D. Final report
and final
accounts
A. The measures I. Hospitalisation for treatment or
care
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2
The burden that the patient places on family members and third parties and their protection must be taken into account.
3
The patient shall be discharged as soon as the requirements for hospitalisation no longer are fulfilled.
4
The patient or a closely related person may request his or her discharge at any time. A decision must be made on the request immediately.
Art. 427
1 If a person suffering from a mental disorder who has entered an institution voluntarily wishes to leave the institution, he or she may be detained by the institution's medical management for a maximum of three days if he or she: 1. is a risk to his or her own life or limb; or 2. is a serious risk to the life or the physical integrity of others.
2
At the end of the three day period, the patient may leave the institution unless he or she is subject to an enforceable hospitalisation order.
3
The patient shall be notified in writing that he or she may petition the court.
Art. 428
1 The adult protection authority is responsible for ordering hospitalisation and discharge.
2
In specific cases, it may delegate responsibility for discharge to the institution.
Art. 429
1 The cantons may designate doctors who in addition to the adult protection authority are authorised to order hospitalisation for a period specified by cantonal law. The period may not exceed six weeks.
2
Hospitalisation may not continue beyond the specified period at the latest unless an enforceable hospitalisation order from the adult protection authority applies.
3
The institution decides on discharge.
Art. 430
1 The doctor shall examine and interview the patient in person.
2
The hospitalisation order shall contain at least the following information:
1. the place and date of the examination; II. Detention of
persons admitted
voluntarily
B. Responsibility
for hospitalisation and
discharge I. Adult protection authority
II. Doctors 1. Responsibility 2. Procedures
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2. the name of the doctor; 3. the diagnosis, reasons therefor and the purpose of hospitalisation;
4. instructions on rights of appeal.
3
An appeal does not have suspensive effect unless the doctor or the competent court orders otherwise.
4
A copy of the hospitalisation order shall be given to the patient; a further copy shall be given to the institution on the patient's admission.
5
The doctor shall if possible notify a person closely related to the patient in writing on his or her committal and on the rights of appeal.
Art. 431
1 The adult protection authority shall conduct a review at the latest six months after hospitalisation of whether the requirements for hospitalisation are still being met and whether the institution is still suitable.
2
It shall conduct a second review within the following six months.
Thereafter it shall conduct a review as often as necessary, but at least once every year.
Art. 432
Any person committed to an institution may appoint a person that he
or she trusts as a representative to support him or her during his or her stay and until the conclusion of all related procedures.
Art. 433
1 If a person is committed to an institution to be treated for a mental disorder, the attending doctor shall draw up written treatment plan in consultation with the patient and if applicable his or her authorised representative.
2
The doctor shall inform the patient and the authorised representative of all matters relevant to the planned medical procedures, and in particular the reasons therefor, their purpose, nature, modalities, risks and side effects, of the consequences of not undergoing treatment and of any alternative treatment options.
3
The treatment plan shall be given to the patient so that he or she may consent. Where the patient is incapable of judgement, account must be taken of any patient decree.
4
The treatment plan is adjusted to take account of ongoing developments.
C. Regular
review
D. Authorised
representative
E. Medical
measures in the
case of a mental
disorder I. Treatment plan
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Art. 434
1 In the absence of the patient's consent, the chief physician in the department may order in writing the medical procedures planned in the treatment plan if: 1. failure to carry out the treatment could lead to serious damage to the patient's health or seriously endanger the life or the physical integrity of third parties; 2. the patient is unable to exercise judgement in relation to his or her need for treatment; and 3. no appropriate measure is available that is less invasive.
2
Written notice of the order shall be given to the patient and his or her authorised representative together with instructions on rights of appeal.
Art. 435
1 In an emergency, essential medical procedures may be carried out immediately to protect the patient or third parties.
2
If the institution is aware how the person wishes to be treated, it shall take account of those wishes.
Art. 436
1 If there is a risk that the medical condition will recur, the attending doctor shall attempt to agree with the client before discharge on principles for treatment in the event that the patient is committed to the institution again.
2
The pre-discharge interview must be documented.
Art. 437
1 The cantons shall regulate follow-up care.
2
They may provide for out-patient measures.
Art. 438
Measures restricting the patient's freedom of movement in the institution are governed by the provisions on restricting the freedom of movement of patients in residential or care institutions mutatis mutandis. The right to appeal to the court is reserved.
Art. 439
1 In the following cases, the patient or a closely related person may petition the competent court in writing: II. Treatment
without consent
III. Emergencies
IV. Predischarge
interview
V. Cantonal law
F. Measures
restricting
freedom of
movement
G. Petition to
the court
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1. in cases of hospitalisation ordered by a doctor; 2. in cases where the patient is detained by the institution; 3. in cases where a request for discharge is refused by the institution;
4. in cases where a mental disorder is treated without consent; 5. in cases of measures restricting freedom of movement.
2
The deadline for appealing to the court is ten days from the date on which notice of the decision is given. In the case of measures restricting freedom of movement, an appeal may be made to the court at any time.
3
The procedure is governed mutatis mutandis by the provisions on proceedings before a judicial appellate authority.
4
An application for judicial assessment must be passed on to the competent court immediately.
Title Twelve: Organisation Section One: Authorities and Local Jurisdiction
Art. 440
1 The adult protection authority is a specialist authority. It is appointed by the cantons.
2
It has a quorum of three members for taking decisions. The cantons may provide for exceptions for specific matters.
3
It also carries out the tasks of the child protection authority.
Art. 441
1 The cantons shall appoint the supervisory authorities.
2
The Federal Council may issue provisions on supervision.
Art. 442
1 The adult protection authority at the place of residence of the client has jurisdiction. In ongoing proceedings, the same authority retains jurisdiction until the case has been concluded.
2
In urgent cases, the authority where the client is actually residing has jurisdiction. If this authority carries out a measure, it shall notify the authority in the client's normal place of residence.
3
In the case of a deputyship due to absence, the authority at the place where the majority of the assets have been managed or have been transferred to the client has jurisdiction.
A. Adult
protection
authority
B. Supervisory
authority
C. Local
jurisdiction
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4
The cantons are entitled to declare the authority in the client's place of origin rather than place of residence to have jurisdiction over citizens of the canton who are resident in the canton, provide the commune of origin is wholly or partly responsible for supporting persons in need.
5
If a person subject to a measure changes place of residence, the authority at the new place shall take responsibility for the measure immediately, unless there is good cause for not doing so.
Section Two: Procedure Sub-section One: Before the Adult Protection Authority
Art. 443
1 Any person may notify the adult protection authority if a person appears to be in need of assistance. The provisions on professional confidentiality are reserved.
2
Any person who while acting in an official capacity learns that a person needs assistance is required to notify the adult protection authority. The cantons may provide for further notification obligations.
Art. 444
1 The adult protection authority shall verify its jurisdiction ex officio.
2
If it decides that it has no jurisdiction, it shall assign the case immediately to the authority that it regards as having jurisdiction.
3
If it is uncertain as to whether it has jurisdiction, it shall consult the authority that it believes may have jurisdiction.
4
If no agreement is reached after consultation, the authority originally involved shall refer the question of jurisdiction to the appellate authority.
Art. 445
1 The adult protection authority shall at the request of a person participating in the proceedings or ex officio take all the precautionary measures required for the duration of the proceedings. It may in particular order an adult protection measure as a precautionary measure.
2
In cases of particular urgency, it may take precautionary measures immediately without hearing the persons participating in the proceedings. At the same time, it shall give these persons the opportunity to express their views, after which it shall review its decision.
A. Notification
rights and
obligations
B. Verification
of jurisdiction
C. Precautionary
measures
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3
An appeal against precautionary measures may be filed within ten days of notice thereof being given.
Art. 446
1 The adult protection authority investigates the circumstances of the case ex officio.
2
It shall conduct the required enquiries and gather the required evidence. It may instruct a suitable person or agency to carry out enquiries. If necessary, it shall commission an opinion from an expert.
3
It is not limited by the requests made by the persons participating in the proceedings.
4
It shall apply the law ex officio.
Art. 447
1 The client shall be heard in person unless to do so appears inappropriate.
2
In a case involving care-related hospitalisation, the adult protection authority shall normally hear the client normally as a panel.
Art. 448
1 The persons participating in the proceedings and third parties are obliged to cooperate in the enquiries into the circumstances. The adult protection authority shall make the arrangements required to safeguard legitimate interests. If necessary, it shall order the enforcement of the duty to cooperate.
2
Doctors, dentists, pharmacists and midwives, together with their auxiliary personnel are only obliged to cooperate if the person entitled to confidentiality has authorised them to do so or if their superior has relieved them of the obligation of professional secrecy at the request of the adult protection authority.
3
Members of the clergy, lawyers, defence agents, mediators and former welfare deputies appointed in the case are not subject to the obligation to cooperate.
4
Administrative authorities and courts shall hand over the required files, draw up reports and provide information unless legitimate interests require otherwise.
Art. 449
1 If a psychiatric assessment is essential and cannot be carried out on an out-patient basis, the adult protection authority shall have the client admitted to a suitable institution for assessment.
D. Procedural
principles
E. Hearing
F. Obligations to
cooperate and
administrative
assistance
G. Assessment in
an institution
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2
The provisions on the procedure for care-related hospitalisation apply mutatis mutandis.
a If necessary, the adult protection authority shall order that the client be
represented and appoint a person experienced in care-related and legal matters as deputy.
b 1 The persons participating in the proceedings have the right to inspect the case files, unless legitimate interests require otherwise.
2
If a person participating in the proceedings is refused access to any case files, the information therein may only be used in the proceedings if the authority discloses the content relevant to the case verbally or in writing to the person concerned.
c The adult protection authority shall notify the civil register office if: 1. it makes a person subject to a general deputyship due to permanent loss of the capacity of judgement;
2. an advance care directive become effective for a person permanently lacking capacity of judgement.
Sub-section Two: Before the Appellate Authority
Art. 450
1 Decisions of the adult protection authority are subject to a right of appeal to the competent court.
2
The following persons have a right of appeal: 1. persons participating in the proceedings; 2. persons closely associated with the client; 3. persons with a legitimate interest in the contested decision being reversed or amended.
3
The appeal must be filed with the court in writing and with a statement of the grounds.
a 1 The appeal may challenge: 1. an infringement of the law; H. Appointment
of a representative
I. Inspection of
files
J. Notification
duty
A. Object and
right of appeal
B. Grounds of
appeal
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2. an incorrect or incomplete finding of legally relevant fact; 3. an inappropriate decision.
2
An appeal is also competent on the grounds of denial of justice or unjustified delay.
b 1 The appeal must be filed within thirty days of notification of the decision. This deadline also applies to persons entitled to appeal who are not required to be notified of the decision.
2
In the case of a decision concerning care-related accommodation, the appeal must be filed within ten days of notification of the decision.
3
An appeal on the grounds of denial of justice or unjustified delay may be filed at any time.
c An appeal has suspensive effect unless the adult protection authority
or the judicial appellate authority rules otherwise.
d 1 The judicial appellate authority shall give the adult protection authority the opportunity to express its position.
2
Instead of submitting its views, the adult protection authority may reconsider its decision.
e 1 A statement of grounds is not required for an appeal against a decision relating to care-related hospitalisation.
2
The appeal does not have suspensive effect unless the adult protection authority or the judicial appellate authority rules otherwise.
3
In cases involving mental disorders, the decision must be based on the opinion of an expert.
4
The judicial appellate authority shall normally hear the client as a panel of judges. If necessary, it shall order that the client be represented and appoint a person experienced in care-related and legal matters as deputy.
5
Normally, it decides within five working days of the appeal being filed.
C. Deadline for
filing the appeal
D. Suspensive
effect
E. Consultation
with the lower
instance and
reconsideration
F. Special
provisions in the
case of carerelated hospitali-
sation
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Sub-Section Three: Joint Provision
f In addition, the provisions of the Civil Procedure Ordinance apply
mutatis mutandis, unless the cantons provide otherwise.
Sub-Section Four: Enforcement
g 1 The adult protection authority shall enforce decisions on request or ex officio.
2
If the adult protection authority or the judicial appellate authority in the decision has already ordered compulsory enforcement measures, these may be enforced directly.
3
The person responsible for enforcement may enlist the help of the police if necessary. Normally a warning must be given before direct compulsory measures are applied.
Section Three: Relationship with Third parties and Duty of Cooperation
Art. 451
1 The adult protection authority is subject to a duty of confidentiality in the absence of overriding interests.
2
Any person who shows a credible interest may request the adult protection authority to provide information on the existence and the effects of an adult protection measure.
Art. 452
1 An adult protection measure may be cited in opposition to third parties even if they are acting in good faith.
2
If the deputyship limits the capacity of the client to act, debtors must be notified that contractual performance only relieves them of their obligations payment if it is made to the deputy. Prior to notice being given, the deputyship may not be cited in opposition to debtors acting in good faith.
3
If a person subject to an adult protection measure induces other persons to accept his or her capacity to act in error, he or she is liable to them for any loss or damage caused thereby.
A. Duty of
confidentiality
and information
B. Effect of the
measures on
third parties
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Art. 453
1 If there is a serious risk that a person in need will endanger himself or herself or commit a felony or misdemeanour that seriously damages another person physically or mentally or causes them material loss, the adult protection authority shall cooperate with the agencies concerned and the police.
2
In such cases, persons subject to official or professional secrecy are entitled to notify the adult protection authority.
Section Four: Accountability
Art. 454
1 Any person who is injured by an unlawful act or omission related to official adult protection measures has the right to damages and, if justified by the seriousness of the injury it, to satisfaction.
2
The same right applies if the adult protection authority or the supervisory authority behaves unlawfully in relation to other adult protection matters.
3
The canton is liable; the injured party has no right to damages against the person who caused the injury.
4
The canton's right of recourse against the person that caused the injury is governed by the cantonal law.
Art. 455
1 The right to claim damages or satisfaction is subject to a time limit of one from the day on which the injured person became aware of the injury, but in any case, ten years from the date of the act causing injury.
2
If the claim is based on a criminal offence for which criminal law specifies a longer limitation period, the longer period applies.
3
If the injury is related to the ordering or conduct of a long-term measure, the time limit for a claim against the canton does not begin to apply before the long-term measure ends or is continued by another canton.
Art. 456
The liability of a person entrusted with another's care as well as that of a spouse or registered partner of a person lacking capacity of judgement or of a representative in the case of medical measures, insofar as C. Duty of
cooperation
A. Principle
B. Limitation
periods
C. Liability
under agency
law
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that person is not a welfare deputy is governed by the provisions of the Code of Obligations420 on agency.
Part Three: Law of Succession Division One: Heirs Title Thirteen: Statutory Heirs
Art. 457
1 The nearest heirs of a deceased person are his or her issue.
2
Children inherit in equal parts.
3
Predeceased children are replaced by their own issue in all degrees per stirpes.
Art. 458
1 Where the deceased is not survived by any issue, the estate passes to the parental line.
2
The father and mother each inherit one-half of the estate.
3
A predeceased parent is replaced by his or her issue in all degrees per stirpes.
4
Where there are no issue on one side, the entire estate passes to the heirs on the other.
Art. 459
1 Where the deceased is survived by neither issue nor heirs in the parental line, the estate passes to the line of the grandparents.
2
Where the grandparents of the paternal and maternal lines survive the deceased, they inherit in equal parts on both sides.
3
A predeceased grandparent is replaced by his or her issue in all degrees per stirpes.
4
If a grandparent on the paternal or maternal side has predeceased without issue, that entire half of the estate is inherited by the heirs on that side.
5
If there are no heirs in either the paternal or the maternal side, the entire estate passes to the heirs in the other side.
420 SR
220
421 Amended by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
A. Related421
heirs I. Issue
II. Parental line
III. Grandparental line
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Art. 460
422 The succession rights of relatives end with the line of the grandparents.
Art. 461
423
Art. 462
424 Surviving spouses and registered partners receive: 1. one-half of the estate, where they are obliged to share with the deceased's issue;
2. three-quarters of the estate, where they are obliged to share with heirs in the parental line; 3. the entire estate, where no heirs exist in the parental line either.
Art. 463-464425
Art. 465
426
Art. 466
427 Where the deceased leaves no heirs, his or her estate passes to the canton in which he or she was last resident or to the commune designated by the law of that canton.
422 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
423 Repealed by No I 2 of the FA of 25 June 1976, with effect from 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
424 Amended by Annex No. 8 of the Same-Sex Partnership Act of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685; BBl 2003 1288).
425 Repealed by No I 2 of the FA of 5 Oct. 1984, with effect from 1 Jan 1988 (AS 1986 122; BBl 1979 II 1191).
426 Repealed by No I 3 of the FA of 30 June 1972, with effect from 1 April 1973 (AS 1972 2819; BBl 1971 I 1200). However, see Art. 12a Final Title below.
427 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
IV. Scope of
succession rights
B. Surviving
spouses and
registered
partners
C…
D. State
authority
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Title Fourteen: Testamentary Dispositions Section One: Testamentary Capacity
Art. 467
Any person who has the capacity of judgement and is at least 18 years
old has the right to draw up a will disposing of his or her property in accordance with the limits and forms prescribed by law.
Art. 468
428 1 Any person who is capable of judgement and has reached the age of 18 may conclude a contract of succession as a testator.
2
Persons subject to a deputyship that covers the conclusion of a contract of succession require the consent of their legal representative.
Art. 469
1 Dispositions made in error or under the influence of malicious deception, threats or coercion are void.
2
However, they become valid if not revoked by the testator within one year of his or her discovering the error or deception or of his or her release from the threat or coercion.
3
If a disposition contains an obvious error with regard to persons or objects and the testator's true intention may be established with certainty, the disposition shall be rectified accordingly.
Section Two: Testamentary Freedom
Art. 470
1 A person who is survived by issue, parents, a spouse or a registered partner may make a testamentary disposition of that part of his or her property which exceeds the statutory entitlement of the survivor or survivors.429 2 A person who is not survived by any such heirs may dispose of his or her entire property by testamentary disposition.
428 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
429 Amended by Annex No. 8 of the Same-Sex Partnership Act of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685; BBl 2003 1288).
A. Wills
B. Contract of
succession
C. Voidable
dispositions
A. Disposable
part I. Scope of
testamentary
powers
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Art. 471
430 The statutory entitlement is: 1. for any issue, three-quarters of their statutory succession rights;
2. for each parent, one-half; 3.431 for the surviving spouse or registered partner, one-half.
Art. 472
432
Art. 473
1 By a testamentary disposition, the testator may grant the surviving spouse a usufruct of the entire part of the estate passing to their common issue.433 2 This usufruct shall replace the statutory succession right due to the spouse where the common issue are co-heirs with the spouse. In addition to this usufruct, the disposable part is one-quarter of the estate.434 3 If the surviving spouse remarries, the usufruct ceases to apply to that part of the estate which, on succession, could not have been encumbered by a usufruct under the provisions ordinarily governing the statutory entitlements of the deceased's issue.435
Art. 474
1 The disposable part is calculated on the basis of the value of the deceased's assets at the time of his or her death.
2
In calculating this value, the deceased's debts, the funeral expenses, the costs of sealing and of drawing up the inventory and the maintenance claims of members of the household for one month are deducted from value of the estate.
430 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
431 Amended by Annex No. 8 of the Same-Sex Partnership Act of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685; BBl 2003 1288).
432 Repealed by No I 2 of the FA of 5 Oct. 1984 (AS 1986 122; BBl 1979 II 1191).
433 Amended by No I of the Swiss Civil Code of 5 Oct. 2001, in force since 1 March 2002 (AS 2002 269 270; BBl 2001 1121 2011 2111).
434 Amended by No I of the Swiss Civil Code of 5 Oct. 2001, in force since 1 March 2002 (AS 2002 269 270; BBl 2001 1121 2011 2111).
435 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
II. Statutory
entitlement
III.
…
IV. Dispositions
in favour of the
spouse
V. Calculation of
the disposable
part 1. Deduction of debts
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Art. 475
Inter vivos gifts are added to the estate insofar as they are subject to an
action in abatement.
Art. 476
Where a life assurance claim maturing on the death of the deceased
was established in favour of a third party by an inter vivos or testamentary disposition or mortis causa or was transferred by the deceased during his or her lifetime to a third party without valuable consideration, the redemption value of such insurance claim at the time of death is added to the estate.
Art. 477
The testator has the power to deprive an heir of his or her statutory
entitlement by means of a testamentary disposition: 1.436 if the heir has committed a serious crime against the testator or a person close to him or her; 2. if the heir has seriously breached his or her duties under family law towards the testator or the latter's dependants.
Art. 478
1 The disinherited person may neither participate in the estate nor bring an action in abatement.
2
Unless disposed of otherwise by the testator, the disinherited person's portion passes to the testator's statutory heirs as if the disinherited person had predeceased.
3
The disinherited person's issue retain their statutory entitlements as if he or she had predeceased.
Art. 479
1 A disinheritance is valid only if the testator indicates the reason for the disinheritance in his or her testamentary disposition.
2
If the disinherited person challenges the disinheritance on the grounds that the reason therefor is incorrect, any heir or legatee wishing to benefit from the disinheritance must prove that the reason is correct.
3
Where no such proof may be adduced or no reason for the disinheritance is indicated, the disposition shall be upheld insofar as it does not deprive the disinherited person of his or her statutory entitlement
436 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
2. Inter vivos
gifts
3. Insurance
claims
B. Disinheritance I. Grounds
II. Effect
III. Burden of
proof
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unless it was made by the testator in obvious error regarding the reason for the disinheritance.
Art. 480
1 If unpaid debt certificates exist in respect of any of the issue of the testator, the latter may deprive the said issue of one-half of his or her statutory entitlement providing he or she leaves that half to the existing or subsequently born children of the said issue.
2
At the disinherited person's request, the disinheritance is void if, on succession, the unpaid debt certificates no longer exist against him or her or if their total amount does not exceed one-quarter of his or her share of the estate.
Section Three: Types of Disposition
Art. 481
1 Within the limits of his or her right to dispose of his or her property, the testator may dispose of it in part or in full by will or by contract of succession.
2
Any property in respect of which no testamentary disposition has been made passes to the statutory heirs.
Art. 482
1 The testator may attach burdens or conditions to the disposition, the fulfilment of which may be requested by any interested party once the disposition becomes effective.
2
Immoral or unlawful burdens or conditions render the disposition null and void.
3
Where they are merely onerous to third parties or meaningless, they are deemed not to exist.
4
If an animal receives a bequest by testamentary disposition, this disposition is deemed to be a burden by which the animal must be cared for according to its needs.437
Art. 483
1 The testator may name one or more heirs to the entire estate or to a fraction thereof.
437 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
IV. Disinheritance of an
insolvent person
A. In general
B. Burdens and
conditions
C. Naming of
heirs
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2
Any disposition by which a beneficiary should receive all or a specified fraction of the deceased's estate is deemed to constitute the naming of an heir.
Art. 484
1 The testator may bequeath a legacy to a beneficiary without naming that person as an heir.
2
He or she may bequeath a specific legacy or the usufruct of the whole or a part of the estate, or he or she may instruct the heirs or other legatees to make payments to that person from the value of the estate or to release that person from obligations.
3
If the testator bequeaths a specific legacy but the object is not part of the estate and no other intention is evident from the disposition, no obligation is placed on the obligor of the legacy.
Art. 485
1 The object must be delivered to the beneficiary in the same condition that it was in on succession, including damage and growth and with or without encumbrance.
2
With regard to expenditure on and deterioration of the legacy since the succession, the obligor of the legacy has the same rights and duties as an agent without authority.
Art. 486
1 Where the legacies exceed the value of the estate or of the bequest to the obligor or of the disposable part, application may be made to have them abated proportionately.
2
If the obligors do not survive the testator, are unworthy to inherit or disclaim their inheritance, the legacies remain nonetheless effective.
3
If the testator has bequeathed a legacy to a statutory or named heir, the latter has the right to claim the legacy even if he or she disclaims his or her inheritance.
Art. 487
In his or her disposition, the testator may designate one or more persons to whom the estate or legacy shall pass in the event that the initial heir or legatee is predeceased or disclaims it.
D. Legacy I. Nature II. Duty on the
obligor of the
legacy
III. Relationship
to the estate
E. Substitution
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Art. 488
1 The testator is entitled in his or her dispositions to require the named heir, as provisional heir, to deliver the estate to a third party, as remainderman.
2
No such obligation may be imposed on the remainderman.
3
The same provisions apply to legacies.
Art. 489
1 Except where the disposition stipulates otherwise, the time of delivery is deemed to be the death of the provisional heir.
2
Where a different time is specified and that time has not yet occurred on the death of the provisional heir, the inheritance passes to his or her heirs against security.
3
If for whatever reason that time may no longer occur, the inheritance passes unreservedly to the heirs of the provisional heir.
Art. 490
1 In all cases in which remaindermen are designated, the competent authority must order an inventory to be drawn up.
2
Delivery of the inheritance to the provisional heir is made only against security, except where the testator has expressly released him or her from such an obligation; in the case of immovable property, security may be provided by entering the delivery obligation under priority notice in the land register.
3
If the provisional heir is unable to provide security or jeopardises the remainderman's expectancy, the inheritance must be placed under probate administration.
Art. 491
1 A provisional heir acquires the inheritance in the same manner as any named heir.
2
He or she becomes the owner of the inheritance with an obligation to deliver it.
Art. 492
1 The remainderman acquires the testator's bequest if he or she is alive at the stipulated delivery time.
2
If he or she dies before then, the inheritance passes to the provisional heir unless the testator has ordered otherwise.
F. Remaindermen I. Designation of
a remainderman
II. Time of
delivery
III. Security
IV. Legal status 1. Of the provisional heir
2. Of the
remainderman
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3
If the provisional heir dies before the testator or is unworthy of inheritance or disclaims the inheritance, it passes to the remainderman.
a438 1 If any issue permanently lacks capacity of judgement and if he or she is not survived by issue or a spouse, the testator may designate a remainderman in respect of the residue.
2
The designation of the remainderman ceases to apply by law if the issue, contrary to expectation, becomes capable of judgement.
Art. 493
1 The testator is entitled to bequeath all or part of the disposable portion of his or her property to a foundation for any purpose of his or her choosing.
2
However, the foundation is valid only if it conforms to the legal requirements.
Art. 494
1 The testator may, by contract of succession, undertake to another person to bequeath his or her estate or a legacy to that person or a third party.
2
He or she is free to dispose of his or her property as he or she sees fit.
3
However, testamentary dispositions or gifts that are incompatible with obligations entered into under the contract of succession are subject to challenge.
Art. 495
1 The testator may conclude an inheritance renunciation contract with an heir with or without valuable consideration.
2
The renouncing party is not deemed to be an heir on succession.
3
Unless the contract provides otherwise, the renunciation of an inheritance also applies to the issue of the renouncing party.
Art. 496
1 Where certain persons are named in the renunciation contact as heirs in lieu of the renouncing party, the renunciation is void if such persons fail to acquire the inheritance for whatever reason.
438 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
V. Issue lacking
capacity of
judgement
G. Foundations
H. Contracts of
succession I. Contracts naming heirs and
making legacies
II. Renunciation
of inheritance 1. Significance 2. Void renunciation
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2
Where an inheritance is renounced in favour of co-heirs, the renunciation is presumed to be effective only in respect of the heirs of the line descending from their nearest common ascendant and has no effect with regard to more distant heirs.
Art. 497
If the deceased was insolvent on succession and his or her creditors
are not satisfied by the heirs, the renouncing party and his or her heirs may be held liable to the extent that they received valuable consideration for the renounced inheritance within the five years prior to the death of the deceased and were still enriched by such consideration on succession.
Section Four: Formal Requirements of Testamentary Dispositions
Art. 498
The testator may make his or her will in the form of a public deed or
in holographic or oral form.
Art. 499
A will by public deed is made in the presence of two witnesses by a
public official, notary public or other person authorised under cantonal law to conduct such business.
Art. 500
1 The testator must inform the official of his or her wishes, whereupon the official draws up the deed or causes it to be drawn up and gives it to the testator to read.
2
The deed must be signed by the testator.
3
The official must date and sign the deed.
Art. 501
1 As soon as the public deed has been signed and dated, the testator must declare to the two witnesses, in the presence of the official, that he or she has read the document and that it contains his or her will.
2
The witnesses must sign the deed and in so doing confirm that the testator made said declaration in their presence and that, in their judgment, in so doing he or she was in full possession of testamentary capacity.
3. Rights of the
creditors of the
estate
A. Wills I. Drawing up a will 1. In general
2. By public
deed a. Formal
requirements
b. Role of the
public official
c. Role of the
witnesses
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3
It is not necessary for the witnesses to be informed of the content of the deed.
Art. 502
1 If the testator does not read and sign the deed, the official must read it out in the presence of the two witnesses and the testator, who must then declare that the deed contains his or her will.
2
In this case the witnesses must not only attest to the testator's declaration and their judgment concerning his or her testamentary capacity but must also confirm, by appending their signatures, that the deed was read out to the testator by the official in their presence.
Art. 503
1 Persons who lack capacity to act, have been deprived of their civil rights due to a criminal conviction439 or are unable to read or write, lineal relatives440 or siblings of the testator or their spouses and the testator's spouse are not permitted to act as authenticating officials or witnesses when making a will in the form of a public deed.
2
No disposition may be made in the will in favour of any authenticating officer or witness or his or her lineal relatives, siblings or spouse.
Art. 504
The cantons must ensure that public officials entrusted with wills
either keep the original or a copy of such deeds themselves or else forward them to an authority for safekeeping.
Art. 505
1 A holographic will must be written in the testator's own hand from start to finish, include an indication of the day, month and year on which it is drawn up, and be signed by the testator.441 2 The cantons must ensure that such wills can be forwarded, whether open or sealed, to an authority for safekeeping.
Art. 506
1 Where the testator is prevented from using any other form of will by extraordinary circumstances such as the imminent risk of death, 439 The suspension of civil rights and privileges due to criminal conviction has been abolished (see AS 1971 777; BBl 1965 I 561 and AS 1974 55; BBl 1974 I 1457).
440 Amended by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
441 Amended by No I of the FA of 23 June 1995, in force since 1 Jan. 1996 (AS 1995 4882; BBl 1994 III 516, V 607).
d. Drawing up a
will without the
testator reading
and signing it
e. Persons
involved
f. Safekeeping of
wills
3. Holographic
will
4. Oral will a. Dispositions
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breakdown in communications, epidemic or war, he or she is entitled to make a will in oral form.
2
To do so, he or she must declare his or her will in the presence of two witnesses and instruct them to have it drawn up as required in the form of a deed.
3
The witnesses are subject to the same disqualification provisions as apply to wills made in the form of public deeds.
Art. 507
1 The oral will, including the place, day, month and year, must be written down immediately by one of the witnesses, then signed by both and lodged without delay with a judicial authority together with a declaration that the testator was in full possession of his or her testamentary capacity and that he or she informed them of his or her will in the special circumstances prevailing at that time.
2
The two witnesses may instead have the will recorded by a judicial authority along with the same declaration.
3
If the testator makes his or her oral will while on military service, an officer with the rank of captain or higher may take the place of the judicial authority.
Art. 508
If the testator subsequently has the opportunity to draw up his or her
will in another form, the oral will ceases to be valid 14 days after such opportunity arises.
Art. 509
1 The testator may revoke his or her will at any time in one of the forms envisaged for drawing it up.
2
Such revocation may apply to all or part of the will.
Art. 510
1 The testator may revoke his or her will by destroying the deed.
2
If the deed is destroyed by others wilfully or by accident, the will likewise becomes void inasmuch as its content may no longer be ascertained precisely and completely; claims for damages are reserved.
b. Conversion
into deed
c. Loss of
validity
II. Revocation
and destruction 1. Revocation 2. Destruction
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Art. 511
1 If the testator makes a will without expressly revoking a previous will, the later will supersedes the earlier unless it is manifestly no more than a codicil thereto.
2
Likewise, a bequest of a specific object is revoked if the testator subsequently makes a new disposition of the same object that is incompatible with the previous disposition.
Art. 512
1 In order to be valid, a contract of succession must meet the same formal requirements as a will executed as a public deed.
2
The contracting parties must simultaneously declare their intentions to the public official and sign the deed before him or her and two witnesses.
Art. 513
1 The contract of succession may be revoked at any time by written agreement between the parties.
2
The testator may unilaterally revoke the naming of an heir or a legacy provided the heir or legatee is guilty of conduct constituting grounds for disinheritance after the contract was concluded.
3
The unilateral revocation must be done in one of the forms prescribed for drawing up wills.
Art. 514
A person entitled to benefits inter vivos under a contract of succession
may declare his or her withdrawal from the contract in accordance with the provisions of the Code of Obligations442 in the event of failure to perform such benefits or to furnish security for them.
Art. 515
1 Where the heir or legatee does not survive the testator, the contract becomes void.
2
Where at the time of the heir's death the testator has been enriched as a result of the contract of succession, unless otherwise provided, the heirs of the deceased may demand restitution of the amount involved.
442 SR
220
3. Subsequent
wills
B. Contracts of
succession I. Execution II. Revocation 1. Inter vivos a. By contract and by will
b. By withdrawal
from the contract
2. Predeceased
heir
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Art. 516
If a testator becomes subject to a restriction of testamentary freedom
after he or she has made a testamentary disposition, the disposition is not annulled but is subject to action in abatement.
Section Five: Executors
Art. 517
1 In the will, the testator may appoint one or more persons with capacity to act to execute the will.
2
The probate authority shall notify these persons of the appointment ex officio and they must state whether they accept it within 14 days of such notification, silence being deemed tacit acceptance.
3
They are entitled to adequate recompense for their activities.
Art. 518
1 Unless otherwise provided by the testator, the executors have the same rights and duties as an official estate administrator.
2
The executors' function is to represent the testator's wishes and, in particular, to administer the estate, settle debts left by the testator, distribute legacies and divide the estate in accordance with the testator's instructions or as required by law.
3
Where more than one executor has been appointed, these powers are exercised jointly, unless the testator has provided otherwise.
Section Six: Declaration of Invalidity and Abatement of Dispositions
Art. 519
1 Where contested, a testamentary disposition may be declared invalid: 1. if it was made by the testator at a time when he or she lacked testamentary capacity; 2. if it is the product of a lack of free will; 3. if its content or a condition attached to it is immoral or unlawful.
2
An action of declaration of invalidity may be brought by any interested heir or legatee.
C. Restriction of
testamentary
freedom
A. Appointment
of executors
B. Function of
an executor
A. Action for
declaration of
invalidity I. On grounds of lack of testamentary capacity,
lack of free will,
unlawfulness or
immorality
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Art. 520
1 If the testamentary disposition is formally defective, it is declared invalid on being contested before a court.
2
If the formal defect consists in the certain persons being party to the execution of the disposition who or whose family members are beneficiaries under the testamentary disposition, only the clauses relating to those beneficiaries shall be declared invalid.
3
The right of action is governed by the same provisions as apply in the event of a lack of testamentary capacity.
a444 If the formal defect in a holographic will consists in the day, month or year not being indicated correctly or at all, the will may be declared invalid only if the precise date cannot be ascertained in some other manner and is necessary in order to determine the testator's testamentary capacity, the chronological order of multiple wills or any other issue affecting the validity of the will.
Art. 521
1 The right to bring an action of declaration of invalidity is subject to a time limit of one year after the contesting party learned of the will and the ground for nullity and in any event a maximum of ten years after the commencement of probate proceedings.
2
In all cases, an action brought on grounds of lack of testamentary capacity, immorality or unlawfulness against a beneficiary acting in bad faith does not become time barred until 30 years have elapsed.
3
Invalidity may be invoked as a defence at any time.
Art. 522
1 Where the testator has exceeded his or her testamentary freedom, those heirs who do not receive the full value of their statutory entitlement may sue to have the disposition abated to the permitted amount.
2
Clauses contained in testamentary dispositions relating to the entitlements of the statutory heirs are deemed merely to be instructions for dividing the estate unless it is evident from the disposition that the testator intended otherwise.
443 Amended by No I of the FA of 23 June 1995, in force since 1 Jan. 1996 (AS 1995 4882; BBl 1994 III 516, V 607).
444 Inserted by No I of the FA of 23 June 1995, in force since 1 Jan. 1996 (AS 1995 4882; BBl 1994 III 516, V 607).
II. On grounds of
formal defect 1. In general443 2. In holographic
wills
III. Time limits
B. Action in
abatement I. Requirements 1. In general
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Art. 523
Where a testamentary disposition contains legacies in favour of several heirs with a statutory entitlement and the testator has exceeded his or her testamentary freedom, such legacies shall be abated among the co-heirs in proportion to the amounts by which they exceed each coheir's statutory entitlement.
Art. 524
1 Where the testator has exceeded his or her testamentary freedom to the detriment of an heir and the latter fails to bring a action in abatement despite being instructed to do so by the bankruptcy administrators or by creditors holding unpaid debt certificates on succession, the administrators or creditors themselves may bring an action in abatement for the amount necessary to cover their claims within the same time limit that applies to the heir.
2
The same right applies in the case of a disinheritance not contested by the person disinherited.
Art. 525
1 Abatement is applied in equal proportion in respect of all named heirs and legatees unless it is evident from the disposition that the testator intended otherwise.
2
Where the abatement applies to a legacy whose beneficiary is also the obligor of other legacies, subject to the same proviso such beneficiary may request that those other legacies be abated proportionately.
Art. 526
Where a specific legacy that cannot be divided without loss of value is
to be abated, the legatee may either claim it and pay the balance or claim the disposable amount in lieu of the object.
Art. 527
The following are subject to abatement in the same manner as testamentary dispositions: 1. advances against a person's share of an inheritance made in the form of wedding gifts, settlements or assignments of assets, to the extent these are not subject to hotchpot; 2. compensation payments in settlement of future rights of inheritance;
3. gifts that were freely revocable by the deceased or made in the five years prior to his or her death, with the exception of customary occasional gifts; 2. Bequests in
favour of heirs
with a statutory
entitlement
3. Rights of
creditors
II. Effect 1. Of abatement in general
2. On specific
legacies
3. On dispositions inter vivos a. Cases
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4. assets alienated by the deceased with the obvious intention of circumventing the limitations on his or her testamentary freedom.
Art. 528
1 A person acting in good faith has a duty of restitution only to the extent that he or she is still enriched by such transactions with the deceased at the time of succession.
2
Where benefits conferred under a contract of succession are subject to abatement, the beneficiary is entitled to reclaim a proportionate amount of the counter-performance made to the testator.
Art. 529
Where a life assurance claim maturing on the death of the deceased
was established in favour of a third party by a disposition inter vivos or by a testamentary disposition or was transferred by the deceased during his or her lifetime to a third party without valuable consideration, such claim is subject to abatement at its redemption value.
Art. 530
If the testator has encumbered the estate with rights of usufruct and
annuities such that their capitalised value over their probable duration exceeds the disposable part of the estate, the heirs are entitled either to seek proportionate abatement of such rights or to redeem them by surrendering the disposable part of the estate to the beneficiaries.
Art. 531
445 The naming of a remainderman in respect of an heir entitled to a
statutory entitlement is invalid as to that part of the estate; the provision on issue who are incapable of judgement is reserved.
Art. 532
Abatement applies first to testamentary dispositions and thereafter to
dispositions inter vivos in reverse chronological order until the statutory entitlement has been reconstituted.
Art. 533
1 A claim in abatement prescribes one year after the date on which the heirs learned of the infringement of their rights and in any event after 445 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
b. Restitution
4. On assurance
claims
5. On usufruct
and annuities
6. On naming of
remaindermen
III. Order of
abatement
IV. Prescription
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ten years have elapsed since the succession, in the case of testamentary disposition, or since the testator's death, in the case of other dispositions.
2
If the declaration of the invalidity of a later disposition revives an earlier one, the limitation periods begin on the date on which invalidity was declared.
3
The entitlement to abatement may be invoked as a defence at any time.
Section Seven: Claims under Contracts of Succession
Art. 534
1 If the testator transfers his or her property during his or her lifetime to the contractual heir, the latter may arrange for a public inventory to be taken.
2
Where the testator has not transferred all his or her property or has acquired property since the transfer, except where otherwise provided the contract applies only to the property transferred.
3
Where such transfer takes place during the testator's lifetime, except where otherwise provided all rights and obligations arising from the contract pass to the heirs of the named heir.
Art. 535
1 If the testator during his or her lifetime conferred benefits on a renouncing heir that exceed that heir's share of the estate, his or her co-heirs may request abatement.
2
However, such benefits are subject to abatement only to the extent they exceed the statutory entitlement of the renouncing heir.
3
Allowance is made for them according to the provisions governing hotchpot.
Art. 536
If as a result of abatement a renouncing heir is obliged to reimburse
the estate, he or she has the choice of either taking the reimbursement upon himself or of placing the entire benefit into hotchpot and participating in the division as if he or she had never renounced.
A. Claims in
respect of
lifetime transfers
B. Hotchpot in
the case of
renunciation of
inheritance I. Abatement II. Reimbursement
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Division Two: Succession Title Fifteen: Commencement of Succession
Art. 537
1 Succession commences on the death of the deceased.
2
Insofar as dispositions and divisions made during deceased's lifetime are relevant under law of succession, they are taken into account according to the condition of the estate as at the time of his or her death.
Art. 538
1 Succession commences in respect of the entire estate at the deceased's last domicile.
2
…447
Art. 539
1 Every person is capable of being an heir and acquiring property by testamentary disposition unless by law he or she is deemed incapable of inheritance.
2
Bequests with a designated purpose to groups of persons not constituting a legal entity are acquired by all such persons individually with an obligation to use them as prescribed or, where this is not practical, give rise to a trust.
Art. 540
1 A person is unworthy of inheriting or acquiring anything by a testamentary disposition if:
1. he or she wilfully and unlawfully caused or attempted to cause the death of the person now deceased; 2. he or she wilfully and unlawfully rendered the person now deceased permanently incapable of making a testamentary disposition;
3. by malice, coercion or threat he or she induced the person now deceased to make or revoke a testamentary disposition or prevented him or her from doing so; 446 Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
447 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
A. Requirements
for the deceased
B. Place where
succession
commences446
C. Requirements
for the heirs I. Capacity 1. Legal capacity 2. Unworthiness
to inherit a. Grounds
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4. he or she wilfully and unlawfully eliminated or invalidated a testamentary disposition in such a manner as to prevent the person now deceased from drawing up a new one.
2
Unworthiness to inherit does not apply if the person now deceased has forgiven the person concerned.
Art. 541
1 Unworthiness to inherit applies only to the person concerned.
2
His or her issue inherit from the deceased as if the person unworthy to inherit were predeceased.
Art. 542
1 In order to inherit, an heir must be alive and capable of inheriting at the time of succession.
2
If an heir dies after commencement of succession, his or her rights of inheritance in respect of the estate pass to his or her own heirs.
Art. 543
1 A legatee surviving the testator and capable of inheriting acquires a claim to the legacy.
2
If he or she dies before the testator, his or her legacy is extinguished in favour of the person who would have been obliged to deliver the legacy to him, unless some other intention is evident from the disposition.
Art. 544
1 A child is capable of inheriting from the moment of conception onwards, providing he or she is subsequently born alive.
1bis
If it is required to protect the child's interests, the child protection authority shall establish a deputyship.448 2 If the child is stillborn, it is disregarded for inheritance purposes.449
Art. 545
1 The testator may bequeath his or her estate or part thereof to a person not yet living when succession commences by designating such person a remainderman.
448 Inserted by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
449 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
b. Effect on issue
II. Capacity to
inherit on
succession 1. As heir 2. As legatee
3. Unborn child
4. Remaindermen
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2
Where no provisional heir is named, the statutory heirs are deemed to be the provisional heirs.
Art. 546
1 Where a person has been declared presumed dead, before his or her heirs or legatees succeed to the estate, they must furnish security for the restitution of the property to those with a prevailing claim or to the missing person himself.
2
Such security shall be furnished for five years in the case of disappearance in life-threatening circumstances and for 15 years in the case of absence without sign of life, but never beyond the date on which the missing person would have become 100 years old.
3
The five-year period runs from the date on which the estate is transferred and the 15-year period from the last sign of life.
Art. 547
1 If the person who is presumed dead returns or other parties assert prevailing claims to the estate, those put in possession of the estate must return it according to the rules governing possession.
2
Provided they acted in good faith, they are liable to parties with prevailing claims only during the period in which action may be brought for reclamation of the estate.
Art. 548
1 If it is impossible to determine whether an heir is alive or dead when succession commences because he or she has disappeared, his or her share of the inheritance is placed under official administration.
2
Those who would succeed to the missing heir's share if he or she were dead may request the court to declare the heir presumed dead one year after his or her disappearance in life-threatening circumstances or five years after the last sign of life and, once such declaration has been made, may apply for release of their shares of his or her inheritance.
3
Such shares are released according to the provisions governing release to the heirs of persons presumed dead.
Art. 549
1 If the heirs of the person presumed dead are already in possession of his or her property and an inheritance passes to him or her, his or her co-heirs may invoke this fact and request that such inheritance be released to them without need for a second declaration of presumed death.
D. Presumption
of death I. Inheriting from persons presumed dead 1. Devolution
against security
2. Annulment of
presumption of
death and
restitution
II. Succession
rights of persons
presumed dead
III. Correlation
of the two cases
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2
The heirs of the person presumed dead may likewise invoke a declaration of presumed death obtained by the co-heirs.
Art. 550
1 Where the missing person's property or succession rights have been under official administration for ten years or more, or he or she would have reached the age of 100, at the request of the competent authority the declaration of presumed death is pronounced ex officio.
2
If no rightful heirs come forward during the public notice period, the property of the person presumed dead passes to the state authority with right to succeed or, if he or she was never resident in Switzerland, to the canton of origin.
3
The local authority or canton concerned has the same duty of restitution as those put in possession of the estate towards the person presumed dead and parties with prevailing claims.
Title Sixteen: Effect of Succession Chapter One: Measures to Safeguard Succession
Art. 551
1 The competent authority must of its own accord take all measures necessary to ensure proper succession.450 2 In the cases envisaged by law, in particular, such measures include sealing the estate, drawing up the inventory, appointing the estate administrators and reading out the wills of the deceased.
3
…451
Art. 552
The order to seal the estate is given whenever provided for by cantonal law.
Art. 553
1 The order to draw up an inventory is given: 1. where an heir is under guardianship or is to be made a ward of court;
450 Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
451 Repealed by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, with effect from 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
IV. Procedure ex officio
A. In general
B. Sealing the
estate
C. Inventory
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2. where an heir is permanently absent and without representation;
3. at the request of one of the heirs.
4. where an adult heir is or is to be made subject to a general deputyship.452
2
The inventory is drawn up in accordance with the provisions of cantonal law and normally must be completed within two months of the death of the deceased.
3
Cantonal legislation may require that an inventory be drawn up in other cases.
Art. 554
1 Estate administrators are appointed: 1. where such an appointment is in the best interests of an heir who is permanently absent and without representation; 2. where none of the claimants may adequately establish his or her succession rights or the existence of an heir is uncertain; 3. where not all heirs are known; 4. in special cases provided for by law.
2
Where the deceased had named an executor, administration of the estate is entrusted to him or her.
3
Where the deceased was subject to a deputyship that covers asset management, the deputy is responsible for administering the estate unless other instructions apply.453
Art. 555
1 If the authority is uncertain as to whether the deceased is survived by heirs or whether it is aware of all the heirs, the authority must by appropriate public means call on all persons with succession rights to come forward and claim them within one year.
2
If no such person comes forward during this time and if no heirs are known to the authority, the estate passes to the state authority with right to succeed, subject to any action for recovery of inheritance.
452 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
453 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
D. Estate
administrators I. In general II. In the case of
unknown heirs
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Art. 556
1 If the deceased left a will, this must be submitted to the authority without delay even if it appears to be invalid.
2
The public official by whom the will was recorded or with whom it was deposited or any other person who had custody of the will or found it among the personal effects of the deceased is personally responsible on learning of the testator's death for ensuring that the will is submitted to the authority.
3
Once the will has been submitted, the authority must, where feasible after hearing all interested parties, either release the estate to the statutory heirs on a provisional basis or appoint estate administrators.
Art. 557
1 The testator's will must be opened and read out by the competent authority within one month of its submission.
2
All heirs known to the authority are summoned to attend the reading.
3
If the testator left more than one will, all are to be submitted to the authority and opened and read out by it.
Art. 558
1 At the estate's expense, all interested parties receive a copy of the provisions of the will as relate to them.
2
Legatees of unknown whereabouts are informed by appropriate public notice.
Art. 559
1 One month after notification of the interested parties, at the request of the named heirs the probate authority issues such persons with a certificate confirming them as heirs, subject to action of declaration of invalidity and for recovery of inheritance, providing their entitlement has not expressly been challenged by the statutory heirs or the legatees of an earlier will.
2
At the same time the estate administrator will be instructed, where applicable, to release the estate into their possession.
E. Probate
proceedings I. Duty to submit the will
II. Reading the
will
III. Notification
of interested
parties
IV. Release of
the estate
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Chapter Two: Vesting of the Estate
Art. 560
1 On the death of the deceased, the estate in its entirety vests by operation of law in the heirs.
2
Subject to the statutory exceptions, the deceased's claims, rights of ownership, limited rights in rem and rights of possession automatically pass to the heirs and the debts of the deceased become the personal debts of the heirs.
3
Vesting in the named heirs takes effect retroactively from the date on which succession commenced and the statutory heirs must relinquish the estate to them according to the rules governing possession.
Art. 561
454
Art. 562
1 The legatees have a personal claim against the obligors of their legacies or, where no-one is specifically named as such, against the legal or named heirs.
2
Unless otherwise provided by testamentary disposition, the claim becomes due once the obligor has accepted the inheritance or is no longer able to disclaim it.
3
If the heirs fail to fulfil their obligation, they may be sued for release of the bequeathed property or, where the legacy pertains to performance of some action, for damages.
Art. 563
1 Where the bequest to the legatee is a usufruct or annuity or other recurring benefit, unless otherwise stipulated, his or her claim is determined according to the provisions of property law and the Code of Obligations.
2
If the legacy is a life assurance claim maturing on the death of the testator, the legatee is entitled to assert that claim directly.
Art. 564
1 The claims of the testator's creditors precede those of legatees.
454 Repealed by No I 2 of the FA of 5 Oct. 1984, with effect from 1 Jan. 1988 (AS 1986 122; BBl 1979 II 1191).
A. Vesting I. Heirs II. …
III. Legatees 1. Vesting 2. Object
3. Relationship
between
creditors and
legatees
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210
2
The claims of the heir's creditors rank equally with those of the testator's creditors, provided the heir acquired the inheritance without reservation.
Art. 565
1 If, after the legacies have been distributed, the heirs pay debts of the estate that were previously unknown to them, they are entitled to reimbursement from the legatees of an amount corresponding to the proportionate abatement of such legacies that the heirs could have claimed.
2
However, the legatees may be held liable only in the amount by which they are enriched at the time such reimbursement is demanded.
Art. 566
1 The legal and named heirs are entitled to disclaim the inheritance passing to them.
2
There is a presumption of a disclaimer if at the time of his or her death the deceased had been officially declared insolvent or was manifestly insolvent.
Art. 567
1 The time limit for a disclaimer is three months.
2
For statutory heirs, this limit begins on the date on which they learned of the death, unless they can show that they did not learn of their succession rights until later, and for named heirs it begins on the date on which they received official notification of the testator's disposition.
Art. 568
If an inventory has been drawn up as a precautionary measure, the
disclaimer time limit for all heirs begins on the date on which the authority notified them that the inventory was complete.
Art. 569
1 If an heir dies before disclaiming or accepting an inheritance, the right to disclaim passes to his or her heirs.
2
For such heirs, the disclaimer time limit begins on the date on which they learned that the inheritance passed to the deceased heir and ends no sooner than the date on which the time limit for disclaiming the inheritance from the deceased heir expires.
4. Abatement
B. Disclaimer I. Declaration 1. Right to renounce
2. Time limit a. In general b. In the case of
an inventory
3. Passing of
right to disclaim
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210
3
Where such heirs disclaim the inheritance and it passes to other heirs who previously had no succession rights, the disclaimer time limit for the latter begins on the date on which they learned of the disclaimer.
Art. 570
1 An heir must declare his or her disclaimer orally or in writing to the competent authority.
2
It must be unconditional and without reservation.
3
The authority keeps an official record of disclaimers.
Art. 571
1 If the heir fails to declare that he or she disclaims the inheritance within the relevant time limit, he or she acquires it without reservation.
2
Where an heir has interfered in the affairs of the estate before expiry of the disclaimer time limit or has acted in a manner not conducive to administering the estate or maintaining the deceased's business activities, or where he or she has appropriated or concealed objects belonging to the estate, he or she is no longer entitled to disclaim the inheritance.
Art. 572
1 Where the deceased has not made a testamentary disposition and one of two or more heirs disclaims the inheritance, his or her share of the estate passes to the other heirs as if he or she had predeceased.
2
Where the deceased has made testamentary disposition, any share of the estate disclaimed by a named heir passes to the testator's nearest statutory heirs, unless other intentions on the part of the testator are evident from the disposition.
Art. 573
1 Where the inheritance is disclaimed by all the nearest heirs, the estate is liquidated by the bankruptcy office.
2
If liquidation produces a surplus after payment of debts, this passes to those entitled to inherit as if they had not disclaimed it.
Art. 574
If the deceased's issue have disclaimed the inheritance, the authority
notifies the disclaimer to the surviving spouse, who is entitled to declare acceptance within one month.
4. Form
II. Forfeiture of
right to disclaim
III. Disclaimer
by one co-heir
IV. Disclaimer
by all the nearest
heirs 1. In general 2. Entitlement of
surviving spouse
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210
Art. 575
1 When disclaiming the inheritance, the heirs may request that it be offered to their subsequent heirs before the estate is liquidated.
2
In this event, the authority informs the subsequent heirs that the preceding heirs have disclaimed, and if the former fail to declare their acceptance of the inheritance within one month, they are likewise deemed to have disclaimed it.
Art. 576
Where there is good cause, the competent authority may grant the
legal and named heirs an extension of the time limit or set a new one.
Art. 577
Where a legatee disclaims a legacy, it becomes void in favour of the
obligor, unless other intentions on the part of the testator are evident from his or her disposition.
Art. 578
1 Where an overindebted heir has disclaimed an inheritance in order to withhold it from his or her creditors, the latter or the bankruptcy administrators may challenge the disclaimer within six months unless their claims are secured.
2
If their challenge is upheld, the inheritance is placed in official liquidation.
3
Any surplus serves first to satisfy the challenging creditors and any balance remaining after redemption of the other debts passes to the heirs in whose favour the disclaimer was made.
Art. 579
1 Where the deceased was insolvent and his or her heirs disclaim the inheritance, they remain liable to his or her creditors to the extent that in the five years prior to his or her death they received property or assets from him or her which on division of the estate would have been subject to hotchpot.
2
The endowment of newly-weds according to local custom and the costs of raising and educating children are not affected by such liability.
3
Heirs acting in good faith are liable only to the extent they are still enriched.
3. Disclaimer in
favour of
subsequent heirs
V. Extension of
time limit
VI. Disclaimer
of a legacy
VII. Security for
the heir's
creditors
VIII. Liability in
the event of
disclaimer
Swiss Civil Code
167
210
Chapter Three: Public Inventory
Art. 580
1 Any heir entitled to disclaim his or her inheritance has the right to request a public inventory.
2
The request must be made to the competent authority within one month in the same form as the disclaimer.
3
A request made by one heir is also valid for the others.
Art. 581
1 The public inventory is drawn up by the competent authority in accordance with the provisions of cantonal law and consists of a list of all the assets and debts of the estate, together with an appraisal of the value of each item in the inventory.
2
Any person able to provide information on the financial circumstances of the deceased is personally obliged to give the authority all the information it requires.
3
In particular, the heirs must inform the authority of any debts of the deceased that are known to them.
Art. 582
1 In the course of drawing up the inventory, the authority shall make a formal call to account whereby appropriate public notices are issued calling on all creditors and debtors of the deceased, including creditors under a surety, to come forward and register their claims and debts within a specified time limit.
2
Such notices must alert the creditors to the consequences of any failure to register.
3
The time limit for registering must not be earlier than one month from the date of the first public notice.
Art. 583
1 Claims and debts evident from the public registers or from the papers of the deceased are included ex officio.
2
The debtors and creditors must be notified of any such inclusion.
Art. 584
1 On expiry of the published time limit, the inventory is closed and made available for perusal by all interested parties for at least one month.
A. Requirements
B. Procedure I. Inventory II. Formal call to
account
III. Inclusion ex officio
IV. Result
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210
2
The costs are borne by the estate and, where this is insufficient, by the heirs who requested the inventory.
Art. 585
1 While the inventory is being drawn up, only the necessary administrative actions may be taken.
2
Where the authority authorises an heir to continue the deceased's business activities, the co-heirs may request that security be furnished.
Art. 586
1 While the inventory is being drawn up, no action may be taken to enforce the debts of the deceased.
2
Limitation periods are suspended.
3
Except in urgent matters, court proceedings may neither be commenced nor continued.
Art. 587
1 Once the inventory is closed, all the heirs are requested to declare their intentions with regard to acquiring the inheritance due to them.
2
Where justified in the circumstances, the competent authority may set a further time limit for obtaining appraisals, settling disputed claims and the like.
Art. 588
1 During the set time limit, an heir may disclaim his or her inheritance or request official liquidation or accept the inheritance either subject to public inventory or without reservation.
2
Where an heir makes no declaration, he or she is deemed to have accepted the inheritance subject to public inventory.
Art. 589
1 Where an heir accepts the inheritance subject to public inventory, the debts of the deceased listed in the inventory and the assets pass to him or her.
2
The acquisition of the inheritance with all attendant rights and obligations takes effect retroactively from the date on which the succession commenced.
3
The heir is liable for debts listed in the inventory both with the inheritance and with his or her own assets.
C. Situation of
the heirs during
the inventory I. Administration II. Debt enforcement,
litigation, time
limit
D. Effect I. Time limit for declaration of
intention
II. Declaration of
intention
III. Effects of
acceptance
subject to public
inventory 1. Liability as per inventory
Swiss Civil Code
169
210
Art. 590
1 The heirs are not liable either personally or with the inheritance towards creditors of the estate whose claims were not included in the inventory because the creditors failed to register them in time.
2
Where such failure to register claims in the inventory was through no fault of the creditor or his or her claims were not included in the inventory despite having been registered, the heir is liable to the extent he or she is enriched by the inheritance.
3
In all cases, creditors may assert claims to the extent these are secured by a lien on the estate assets.
Art. 591
Any debts under a surety given by the deceased are listed separately in
the inventory and may be asserted against an heir, even where he or she accepts the inheritance, only in the amount that would be allocated to the surety debt if all debts of the estate were to be redeemed under the rules governing bankruptcy.
Art. 592
Where an estate passes to a state authority, a formal call to account is
made ex officio and the state authority is liable for the debts of the estate only in the amount of the assets it has inherited from the estate.
Chapter Four: Official Liquidation
Art. 593
1 Rather than disclaim the inheritance or accept it subject to public inventory, each heir is entitled to request official liquidation.
2
However, such request may not be granted if at least one co-heir accepts the inheritance.
3
In the event of official liquidation, the heirs are not liable for the debts of the estate.
Art. 594
1 Where the deceased's creditors have good cause to fear that their claims will not be met and such claims are not satisfied or secured at their request, within three months of the death of the deceased or the reading of the will they may demand the official liquidation of the estate.
2
Subject to the same conditions, legatees may request provisional measures by way of security.
2. Liability
beyond the
inventory
E. Liability for
debts subject to a
surety
F. Acquisition by
a state authority
A. Requirements I. At the request of an heir
II. At the request
of the deceased's
creditors
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170
210
Art. 595
1 The official liquidation is carried out by the competent authority or by one or more estate administrators acting at the authority's behest.
2
It begins with the taking of an inventory and the attendant formal call to account.
3
The estate administrator is under the authority's supervision and the heirs may appeal to the authority against any measures taken or planned by the administrator.
Art. 596
1 For the purpose of liquidation, any business activities of the deceased still in operation are brought to a close, his or her obligations are performed, his or her claims are called in, his or her legacies are distributed where possible, his or her rights and duties are determined at law, where necessary, and his or her assets are converted into cash.
2
Land formerly belonging to the deceased is sold at public auction; it may be disposed of by private sale only with the consent of all the heirs.
3
The heirs are entitled even during the liquidation process to request that some or all of the objects and monies that are not required for the liquidation be released into their possession.
Art. 597
If the estate is overindebted, its liquidation is carried out by the bankruptcy office in accordance with the provisions governing bankruptcy.
Chapter Five: Action for Recovery of Inheritance
Art. 598
1 A person who believes that, as a legal or named heir, he or she has a better claim than the current possessor to an estate or a part thereof may assert his or her claim by bringing an action for recovery of inheritance.
2
…455
455 Repealed by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
B. Procedure I. Administration II. Ordinary liquidation III. Liquidation
by the bankruptcy office
A. Requirements
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171
210
Art. 599
1 If the claim is upheld, the possessor must relinquish the estate or the part thereof to the claimant in accordance with the rules governing possession.
2
The defendant cannot invoke adverse possession in respect of property belonging to the estate.
Art. 600
1 The right to bring an action for recovery of inheritance against a defendant acting in good faith prescribes one year after the date on which the claimant learned that the property was possessed by the defendant and that he or she has a better claim to it, but in all cases ten years after the death of the deceased or the date on which the will was read.
2
The prescriptive period for the right to bring an action against a defendant acting in bad faith is always 30 years.
Art. 601
The right of a legatee to bring an action prescribes ten years after
notification of the testamentary disposition or from the subsequent date on which the legacy became due.
Title Seventeen: Division of the Estate Chapter One: Community of Heirs prior to Division
Art. 602
1 Where several heirs inherit the estate, on succession and until such time as it is divided they form a community in respect of all rights and obligations of the estate.
2
They become joint owners of the property belonging to the estate and have joint power of disposal over the rights of the estate, subject to contractual or statutory powers of representation and administration.
3
At the request of one co-heir, the competent authority may appoint a representative of the community of heirs until the estate is divided.
Art. 603
1 The heirs are jointly and severally liable for the debts of the deceased.
B. Effect
C. Time limit
D. Action by a
legatee
A. Effect of
succession I. Community of heirs
II. Liability of
the heirs
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172
210
2
The appropriate compensation due to children or grandchildren for contributions made to the household they shared with the deceased must be added to the debts of the estate unless this would render the estate overindebted.456
Art. 604
1 Any heir may at any time request that the estate be divided unless he or she is under a contractual or statutory obligation to remain a member of the community of heirs.
2
On application by an heir, the court may order a temporary deferral of the division of the estate or specific parts thereof where immediate division would substantially impair their value.
3
Where one heir is insolvent, his or her co-heirs may apply for provisional measures to secure their own claims immediately upon succession.
Art. 605
1 If on succession the rights of an unborn child need to be taken into consideration, the division of the estate must be deferred until the child is born.
2
In the interim, the child's mother is entitled to enjoy the benefits of the joint estate to the extent required for her maintenance.
Art. 606
Heirs who were members of the household of and maintained by the
deceased at the time of his or her death may demand that they be maintained for a further month at the estate's expense.
Chapter Two: Method of Division
Art. 607
1 Statutory heirs must divide the estate among themselves and with the named heirs according to the same principles.
2
Except where provided otherwise, they are free to decide on the method of division.
3
Co-heirs in possession of estate property or in debt to the deceased must provide precise information regarding such circumstances prior to the division.
456 Inserted by No I 1 of the FA of 6 Oct. 1972, in force since 15 Feb. 1973 (AS 1973 93; BBl 1970 I 805, 1971 I 737).
B. Right to
division
C. Deferral of
division
D. Claims of
household
members
A. In general
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173
210
Art. 608
1 The testator is entitled by means of testamentary disposition to give his or her heirs instructions concerning the division and the formation of portions.
2
Such instructions are binding on the heirs, subject to measures to balance out the portions in the event of an inequality not intended by the testator.
3
Unless other intentions on the part of the testator are evident from his or her disposition, any bequest of a given part of the estate to one particular heir is deemed to be merely an instruction concerning the division rather than a specific legacy.
Art. 609
1 At the request of a creditor who has acquired or distrained an inheritance that has passed to an heir or who holds unpaid debt certificates against him or her, the authorities must assist in the division in place of that heir.
2
Cantonal law may provide for official intervention in the division process in other cases.
Art. 610
1 Except where other provisions apply, all heirs have an equal right to the estate property.
2
They must disclose to each other all circumstances concerning their relationship with the deceased insofar as these pertain to the just and equitable division of the estate.
3
Each heir may request that the debts of the deceased be redeemed or secured prior to division of the estate.
Art. 611
1 The heirs form as many portions or lots as there are heirs or stirpes.
2
If they are unable to reach agreement, at the request of one heir the competent authority must form the lots with due regard to local custom and the personal circumstances and wishes of the majority of the co-heirs.
3
The lots are distributed among the heirs either as agreed or by the drawing of lots.
B. Instructions
concerning the
division I. Testamentary disposition
II. Assistance
from the
authorities
C. Performing
the division I. Equal rights of heirs
II. Formation of
lots
Swiss Civil Code
174
210
Art. 612
1 Where the value of an object belonging to the estate would be substantially diminished if such object were divided, it is allocated in its entirety to one of the heirs.
2
Where the heirs are unable to agree on the division or allocation of an object, it must be sold and the proceeds divided.
3
At the request of an heir, such sale must be carried out at auction and, in the absence of agreement among the heirs, the competent authority decides whether such auction is to be public or only among the heirs.
a457 1 Where the house or apartment in which the spouses lived or the household effects form part of the estate, the surviving spouse may request that such property be allocated to him or her against his or her portion.
2
Where justified in the circumstances, at the request of the surviving spouse or the other statutory heirs of the deceased, a usufruct or right of residence may be granted rather than ownership of the home.
3
The surviving spouse cannot claim such rights in respect of premises in which the deceased practised a profession or ran a business and which are required by one of his or her issue in order to continue the profession or business, subject to the provisions of agricultural law of succession.
4
The same provisions apply mutatis mutandis to registered partners.458
Art. 613
1 Items which by their nature belong together must not be separated if one of the heirs objects to such separation.
2
Family documents and items of special sentimental value to the family must not be sold if any of the heirs objects.
3
If the heirs cannot reach agreement, the competent authority decides whether to sell such items or to allocate them, against the recipient's portion or otherwise, giving due regard to local custom and, in the absence of such custom, to the personal circumstances of the heirs.
457 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
458 Inserted by Annex No. 8 of the Same-Sex Partnership Act of 18 June 2004, in force since 1 Jan. 2007 (AS 2005 5685; BBl 2003 1288).
III. Allocation
and sale of
specific objects
IV. Allocation of
the home and
household
effects to the
surviving spouse
D. Special items I. Items that belong together,
family documents
Swiss Civil Code
175
210
a459 Where the tenant of an agricultural enterprise dies and one of his or her heirs continues the lease on his or her own, on request he or she may have the entire inventory (livestock, machinery, supplies, etc.) allocated to him or her and charged to his or her portion at its utility value.
Art. 614
Claims of the deceased against an heir are charged to the latter's
portion.
Art. 615
If as a result of the division an heir receives estate property that is
pledged to secure the debts of the deceased, the debt to the pledgee is likewise transferred to him or her.
Art. 616
460
Art. 617
461 Land is charged to the heirs' portions at its market value as at the time of the division.
Art. 618
1 Where the heirs are unable to agree on the market value, it is estimated by an officially appointed expert.462 2
…463
459 Inserted by Art. 92 No 1 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
460 Repealed by Art. 92 No 1 of the FA of 4 Oct 1991 on Rural Land Rights, with effect from 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
461 Amended by Art. 92 No 1 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
462 Amended by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
463 Repealed by No I 1 of the FA of 6 Oct. 1972, with effect from 15 Feb. 1994 (AS 1973 93; BBl 1970 I 805, 1971 I 737).
I.bis Agricultural
inventory
II. Claims of the
deceased against
his or her heirs
III. Pledged
estate property
IV. Land 1. Method of allocation a. Imputed value b. Valuation
procedure
Swiss Civil Code
176
210
Art. 619
464 The method of including and allocating agricultural enterprises and agricultural land is governed by the Federal Act of 4 October 1991465 on Rural Land Rights.
Art. 620
-625466 Chapter Three: Hotchpot
Art. 626
1 The statutory heirs are under a mutual obligation to place into hotchpot any property received from the deceased during his or her lifetime as advancements against their share of the estate.
2
Unless the deceased expressly instructed otherwise, anything gifted or granted to his or her issue by way of dowry, endowment or assignment of assets, debt remission and the like is subject to hotchpot.
Art. 627
1 If a person ceases to be an heir before or after succession, his or her duty of hotchpot passes to the heirs that replace him or her.
2
The issue of an heir have a duty of hotchpot in respect of advancements made in his or her favour even if those advancements have not devolved on them.
Art. 628
1 When placing property in hotchpot, the heirs may at their discretion do so either in kind or by imputing its value, even if the advancements made in their favour exceed the value of their share of the estate.
2
The above provisions are subject to any contrary instructions issued by the testator and to the co-heirs' right to abatement of the advancements.
464 Amended by Art. 92 No 1 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
465 SR 211.412.11 466 Repealed by Art. 92 No 1 of the FA of 4 Oct 1991 on Rural Land Rights with effect from 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
V. Agricultural
businesses and
land
A. Hotchpot duty
of the heirs
B. Hotchpot if
heirs cease to be
heirs
C. Calculation
method I. In kind or by imputation of
value
Swiss Civil Code
177
210
Art. 629
1 Where advancements to an heir exceed the value of his or her share of the estate, subject to claims in abatement, the surplus is exempt from hotchpot if it may be shown that the deceased intended to favour said heir by such advancements.
2
Exemption from hotchpot is presumed in the case of endowments in the usual order of magnitude made to the issue on their marriage.
Art. 630
1 Hotchpot is calculated according to the value of the advancements on succession or, where the advanced property has previously been sold, the sale proceeds obtained.
2
Any expenditure on and damage to the property and the natural produce derived therefrom must be allowed for among the heirs according to the rules governing possession.
Art. 631
1 Unless it is shown that the deceased intended otherwise, sums expended by him or her on the upbringing and education of individual children are subject to hotchpot only insofar as they exceed the normal amounts.
2
Children still in education or who suffer from disabilities must be granted appropriate advance payments on division of the estate.467
Art. 632
Customary occasional gifts are not subject to hotchpot.
Art. 633
468
Art. 634
1 The division of the estate becomes binding on the heirs once the lots have been formed and received or on conclusion of the contract of division.
2
In order to be valid, the contract of division must be done in writing.
467 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
468 Repealed by No I 1 of the FA of 6 Oct. 1972, with effect from 15 Feb. 1994 (AS 1973 93; BBl 1970 I 805, 1971 I 737).
II. Correlation
with share of the
estate
III. Hotchpot
value
D. Education
costs
E. Occasional
gifts
A. Agreement I. Contract of division
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210
Art. 635
1 In order to be valid, contracts between heirs regarding assignment of shares of the estate must be done in writing.469 2 If such contracts are concluded by an heir with third parties, they do not give the latter any right to participate in the division of the estate, but merely confer a claim on the share allocated to that heir as a result of the division.
Art. 636
1 Contracts concluded without the involvement and authorisation of the testator between one heir and another or between an heir and a third party regarding an inheritance that has not yet devolved on the heir are not binding.
2
Any performance rendered under such contracts may be reclaimed.
Art. 637
1 On completion of the division, the co-heirs are mutually liable for the estate property as if they were purchasers and vendors.
2
They must mutually warrant the existence of claims allocated to them in the division and, except in the case of securities with a market price, are mutually liable as simple guarantors for the debtor's solvency in the amount at which such claims were brought into account.
3
Claims under such warranty become statute-barred one year after the division or the subsequent date on which the claims fell due.
Art. 638
A contract of division may be challenged in accordance with the
provisions governing challenge of contract in general.
Art. 639
1 Even after the division of the estate, the heirs remain jointly and severally liable with their entire property for the debts of the testator to his or her creditors, providing the latter have not expressly or tacitly agreed to a division or transfer of such debts.
2
The joint and several liability of the co-heirs prescribes five years after the division or the subsequent date on which the debt claim fell due.
469 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
II. Contracts
regarding shares
of the estate
III. Contracts
prior to succession
B. Liability
among co-heirs I. Warranty II. Challenging
the division
C. Liability
toward third
parties I. Joint and several liability
Swiss Civil Code
179
210
Art. 640
1 If an heir has paid a debt owed by the deceased that was not allocated to him or her in the division, or if he or she has paid more of a debt than he or she has assumed, he or she has right of recourse against the co-heirs.
2
Recourse is taken first against the person who assumed such debt in the division.
3
In all other respects, the heirs must bear the debts in proportion to their shares in the estate, unless otherwise agreed.
Part Four: Property Law Division One: Ownership Title Eighteen: General Provisions
Art. 641
1 The owner of an object is free to dispose of it as he or she sees fit within the limits of the law.
2
He or she has the right to reclaim it from anyone withholding it from him or her and to protect it against any unwarranted interference.
a471 1 Animals are not objects.
2
Where no special provisions exist for animals, they are subject to the provisions governing objects.
Art. 642
1 The owner of an object also has ownership of all its constituent parts.
2
A constituent part is anything which, according to local custom, is held to be an essential part of an object and which cannot be detached without destroying, damaging or altering it.
Art. 643
1 The owner of an object also has ownership of its natural fruits.
2
Natural fruits are the periodic produce and revenues customarily derived from an object used according to its purpose.
470 Amended by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
471 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
II. Recourse
against co-heirs
A. Nature of
ownership I. In general470 II. Animals
B. Scope of
ownership I. Constituent parts
II. Natural fruits
Swiss Civil Code
180
210
3
Prior to separation, the natural fruits are an integral part of the object.
Art. 644
1 Any disposition affecting an object also applies to its accessories, unless an exception is made.
2
Accessories are those chattels which, according to local custom or the clear will of the main object's owner, permanently facilitate the management, use or preservation of the main object and are auxiliary thereto by virtue of having been joined to it, adapted to it or otherwise connected with it.
3
If an object is an accessory, it remains so regardless of temporary separation from the main object.
Art. 645
Chattels do not qualify as accessories if they are intended for temporary use or consumption by the possessor of the main object, are not intrinsically related to it or are connected with it only for storage, sale or hire purposes.
Art. 646
1 Co-ownership exists where several persons own a share in an object which is physically undivided.
2
Unless otherwise stipulated, they are co-owners in equal measure.
3
Each co-owner has the rights and obligations of ownership in respect of his or her share in the object, and said share may be alienated and pledged by him or her, or distrained by his or her creditors.
Art. 647
472 1 The co-owners may agree rules on use and administration that deviate from the statutory provisions and provide therein that the rules may be amended with the consent of the majority of all co-owners.473 1bis
Any amendment to the provisions of the use and administration rules on the allocation of exclusive rights of use also requires the consent of the co-owners who are directly affected.474 472 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
473 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
474 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
III. Accessories 1. Definition 2. Exclusions
C. Collective
ownership I. Co-ownership 1. Relationship among coowners
2. Use and
administration
rules
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210
2
Such rules cannot annul or restrict the rights of each co-owner: 1. to request such measures as are necessary to preserve the object's value and serviceability and, where required, to have these ordered by a court;
2. to take, on his or her own initiative and at the expense of all co-owners, such measures as are urgently needed to safeguard the object against imminent or incremental damage.
a475 1 Each co-owner may attend to ordinary administration and in particular carry out repairs, sowing and harvesting, short-term custody and supervision, may conclude contracts for such purposes and may exercise the powers derived from such contracts and from rental, lease, work and service agreements, including the payment and acceptance of monies on behalf of all the co-owners.
2
With the consent of the majority of the co-owners, the authority to carry out administration may be submitted to a different regime, subject to the statutory provisions governing necessary and urgent measures.
b476 1 By the consent of a majority of the co-owners together representing a majority share in the object, major administrative acts may be carried out, notably including changes in methods of cultivation or use, conclusion and termination of rental and lease agreements, participation in land improvements and the appointment of an administrator whose authority extends beyond ordinary administrative acts.
2
The provisions governing necessary construction work are reserved.
c477
Maintenance, reconstruction and renovation work necessary to preserve the object's value and serviceability may be carried out with the consent of the majority of co-owners where such work does not fall under the authority of each individual co-owner to take ordinary administrative steps.
475 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
476 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
477 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
3. Ordinary
administration
4. Major
administrative
acts
5. Construction
work a. Necessary
work
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210
d478 1 Renovations and refurbishments aimed at enhancing the value or improving the object's profitability or serviceability require the approval of a majority of the co-owners together representing a majority share in the object.
2
Alterations which permanently hinder or render unprofitable a coowner's use or exploitation of the object for its existing purpose may not be carried out without the consent of that co-owner.
3
Where an alteration would require a co-owner to bear unreasonable costs, in particular because they are disproportionate to the value of his or her share, the alteration may be carried out without his or her consent only if the other co-owners assume such part of his or her share of the costs as exceeds that which he or she may reasonably be expected to meet.
e479 1 Building works serving merely to embellish the object, improve its appearance or make its use more comfortable or convenient may only be carried out with the consent of all the co-owners.
2
If such works are commissioned with the consent of the majority of the co-owners who also represent a majority share in the object, they may be carried out even against the wishes of a dissenting co-owner providing they do not permanently impair the latter's right of use and enjoyment and the other co-owners compensate him or her for the merely temporary impairment and assume his or her share of the costs.
Art. 648
480 1 Each co-owner is entitled to represent, use and exploit the object insofar as is compatible with the rights of the other co-owners.
2
The alienation or encumbrance of the object and the modification of its designated purpose require the consent of all co-owners, unless they have unanimously agreed some other arrangement.
3
Where mortgage rights or real burdens apply to co-ownership shares, the co-owners are not permitted to further encumber the object itself with such charges.
478 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
479 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
480 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
b. Useful work
c. Works to
improve
appearance or
convenience
6. Power of
disposal over the
object
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210
Art. 649
481 1 Except where otherwise provided, the administrative costs, taxes and other expenses arising from co-ownership or in relation to the object in co-ownership are borne by the co-owners in proportion to their shares.
2
If a co-owner has borne more than his or her fair share of such costs, he or she is entitled to compensation from the others to an equivalent extent.
a482 The use and administration rules agreed by the co-owners, their administrative decisions and all relevant court judgments and orders are also binding on a co-owner's legal successor and on any person acquiring a right in rem to a co-ownership share.
2
They may be noted next to co-ownership shares of immovable property in the land register.484
b485 1 A co-owner may be excluded from the community of co-owners by court order if, as a result of his or her conduct or that of persons to whom he or she granted use of the object or for whom he or she is responsible, his or her duties towards the other co-owners individually or collectively are so seriously violated that continuation of the community of co-owners becomes unreasonable.
2
Where the community comprises only two co-owners, each has the right to sue the other; in other cases, unless otherwise agreed, legal action against one co-owner must be authorised by a majority of all the co-owners excluding the person to be sued.
3
If the court rules in favour of excluding the defendant, it shall order him or her to alienate his or her share and, should he or she fail to do so within the allowed time limit, shall order it to be sold at public auction in accordance with the provisions governing the forced sale of 481 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
482 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
483 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
484 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
485 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
7. Costs and
expenses
8. Binding nature
of rules and
noting in the
land register483
9. Exclusion
from collective
ownership a. Co-owners
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210
land to the exclusion of the provisions governing dissolution of coownership.
c486 The provisions governing exclusion of co-owners apply mutatis mutandis to usufructuaries and to owners of other rights in rem or personal rights of use entered under priority notice in the land register in respect of co-ownership shares.
Art. 650
487 1 Every co-owner has the right to request the dissolution of the coownership unless this is excluded by an agreement, by division of the object into condominium units or by the dedication of the object to a permanent purpose.
2
Dissolution may be excluded for a maximum of 50 years by means of an agreement which, where the object is land, is valid only if done as a public deed and which may be entered under priority notice in the land register.488 3 Dissolution may not be requested at an inopportune time.
Art. 651
1 Dissolution is effected by means of physical division, by private sale or sale at auction and division of the sale proceeds, or by transfer of the entire object to one or more co-owners who buy out the others.
2
If the co-owners are unable to agree on the method of dissolution, the court will order the physical division of the object or, where this is impossible without substantially diminishing its value, its sale at public auction or private auction among the co-owners.
3
Physical division giving rise to unequal shares may entail monetary payments to balance out the shares.
Art. 651a
489 1 In the event of disputes over ownership of animals kept as pets rather than for investment or commercial purposes, the court will award sole 486 Inserted by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
487 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
488 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
489 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
b. Further
entitled persons
10. Dissolution a. Right to request division
b. Form of
partition
c. Animals kept
as pets
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210
ownership to whichever party offers the better conditions of animal welfare in which to keep the animal.
2
The court may order the person to whom ownership of the animal is awarded to provide appropriate compensation to the other party; the court determines the amount at its discretion.
3
The court shall take all necessary provisional measures, in particular in relation to the animal's care in the interim.
Art. 652
If several persons bound together into a community by legal provision
or contract own an object by virtue of that community, they are joint owners and the rights of each joint owner attach to the whole object.
Art. 653
1 The rights and obligations of the joint owners are determined by the rules governing their legal or contractual community.
2
Unless otherwise provided, the unanimous decision of all the joint owners is required in order to exercise ownership rights and in particular to dispose of the object in any way.
3
For the duration of the community, the right to divide the object or make dispositions relating to a fraction of it is excluded.
Art. 654
1 Dissolution occurs when the object is alienated or the community is terminated.
2
Unless otherwise provided, division of the object is effected according to the provisions governing co-ownership.
a490 The dissolution of joint ownership of agricultural enterprises and
agricultural land is governed by the Federal Act of 4 October 1991491 on Rural Land Rights.
490 Inserted by Art. 92 No 1 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
491 SR 211.412.11 II. Joint ownership 1. Prerequisites
2. Effect
3. Dissolution
III. Joint
ownership of
agricultural
enterprises and
land
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210
Title Nineteen: Land Ownership Chapter One: Object, Acquisition and Loss of Land Ownership
Art. 655
492 1 The object of land ownership is all immovable property.
2
Within the meaning of this Code, immovable property includes: 1. parcels of land and the buildings thereon; 2. distinct and permanent rights recorded in the land register; 3. mines; 4. co-ownership shares in immovable property.
3
An easement relating to immovable property may be recorded in the land register as an independent and permanent right if it: 1. is not created in favour of a benefited property nor exclusively for a specific person; and 2. is established for at least 30 years or for an unlimited period.494
a495 1 A parcel of land may be linked to another parcel of land such that the owner of the main parcel of land is also the owner of the attached parcel of land. The attached parcel shares the same legal destiny as the main parcel and may not be alienated, pledged or encumbered separately.
2
If the parcels are linked for a permanent purpose, the statutory right of pre-emption of the co-owners and the right to demand dissolution may not be claimed.
Art. 656
1 The acquisition of land ownership must be recorded in the land register.
492 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
493 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
494 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
495 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
A. Subject
matter I. Immovable property493
II. Dependent
property
B. Acquisition I. Registration
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210
2
In the case of appropriation, inheritance, compulsory purchase, debt enforcement or court judgment, the acquirer becomes the owner even before registration in the land register but obtains the power of disposal over the immovable property only once he or she has been recorded as the owner in the land register.
Art. 657
1 In order to be binding, a contract to transfer land ownership must be executed as a public deed.
2
Testamentary disposition and marital contracts require the forms prescribed by the law of succession and marital property law.
Art. 658
1 Immovable property recorded in the land register may be appropriated only if the register establishes that it has no owner.
2
Appropriation of land not recorded in the land register is subject to the provisions governing ownerless objects.
Art. 659
1 If new exploitable land is formed from previously ownerless land as a result of alluvion, filling or ground displacement, changes in the course or level of public waters or in some other manner, such land belongs to the canton in which it lies.
2
The cantons are free to allocate such land to owners of adjoining land.
3
If a person can show that parts of ground have become detached from his or her property, he or she is entitled to take them back within an appropriate period.
Art. 660
1 Ground displacement from one parcel of land to another does not alter the boundaries of the parcels.
2
Earth and other objects moving from one parcel to the other in the process are subject to the provisions governing driftage or the joining and mixing of chattels.
496 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
II. Types of
acquisition 1. Transfer 2. Appropriation
3. Formation of
new land
4. Ground
displacement a. In general496
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188
210
a497 1 The general principle whereby ground displacement does not alter land boundaries does not apply to areas designated by the cantons as being in permanent danger of ground displacement.
2
When designating such areas, due consideration shall be given to the characteristics of the land in question.
3
Where a parcel of land forms part of such an area, this fact must be notified in an appropriate manner to the interested parties and recorded in the land register.
b498 1 If a land boundary is rendered impractical by ground displacement, any affected landowner may request that it be redrawn.
2
Any loss or gain in value shall be balanced out.
Art. 661
Where a person has been wrongly recorded in the land register as the
owner of immovable property, his or her ownership may no longer be challenged if he or she has been in possession of it in good faith, uninterruptedly and without challenge for ten years.
Art. 662
1 Where a person has been in possession of immovable property not recorded in the land register uninterruptedly and without challenge for 30 years as if it were his or her property, he or she has the right to be registered as the owner.
2
The same right applies on the same conditions to a person in possession of immovable property whose owner is not evident from the land register or who was declared dead or presumed dead at the beginning of the 30-year adverse possession period.
3
However, such registration may be made only by court order on expiry of a publicly notified period for objections, provided no such objections have been raised or those raised have been dismissed.
497 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
498 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
b. Constant
ground displacement
c. Redrawing of
boundaries
5. Adverse
possession a. Ordinary adverse possession
b. Extraordinary
adverse possession
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210
Art. 663
The rules for computing, interrupting and suspending adverse possession time limits are determined mutatis mutandis by the provisions governing time limitation of debt claims.
Art. 664
1 Ownerless and public objects are subject to the sovereignty of the canton on whose territory they are situated.
2
No rights of private ownership apply to public waters or to land not suitable for cultivation, such as rocks and scree, firn and glaciers, or to springs rising therefrom, unless proof to the contrary is produced.
3
The cantons shall enact the provisions required to govern the appropriation of ownerless land, exploitation and common use of public objects such as roads, town and village squares, waterways and riverbeds.
Art. 665
1 By virtue of acquisition, the acquirer gains a personal claim against the owner to be recorded in the land register and, should the owner refuse, the right to have ownership awarded by court order.
2
In the case of appropriation, inheritance, compulsory purchase, debt enforcement or court judgment, the acquirer may obtain such registration on his or her own initiative.
3
Changes to land ownership occurring by operation of law as a result of marital community of property or the dissolution thereof shall be recorded in the land register at the request of either spouse.499
Art. 666
1 Land ownership is extinguished on deletion of the land register entry and on complete loss of the immovable property.
2
In the case of compulsory purchase, the time at which the loss occurs is determined according to federal and cantonal compulsory purchase law.
499 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
c. Time limits
6. Ownerless and
public objects
III. Right to
registration
C. Loss
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210
a500 1 If the owner recorded in the land register cannot be identified, if his or her address is unknown or if the name or address of one or more of his or her heirs is unknown, the court may on application order the required measures.
2
The court may in particular appoint a representative. On application, it shall stipulate the extent of the powers of representation. Unless it stipulates otherwise, such powers shall be limited to measures to maintain the property.
3
The following may apply for measures to be ordered: 1. any person with a legitimate interest; 2. the land register at the location of the immovable property.
4
The ordering of measures does not interrupt the period required to obtain extraordinary adverse possession.
b501 If a legal entity or other rights holder that is recorded in the land
register as the owner no longer has the required management bodies, and person with a legitimate interest or the land register at the location of the immovable property may apply to the court for the required measures relating to the immovable property to be ordered.
Chapter Two: Substance and Limitation of Land Ownership
Art. 667
1 Land ownership extends upwards into the air and downwards into the ground to the extent determined by the owner's legitimate interest in exercising his or her ownership rights.
2
Within the limits prescribed by law, it includes all buildings and plants as well as springs.
Art. 668
1 Land boundaries are established by the land register plans and by boundary markings on the land itself.
500 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
501 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
D. Judicial
measures I. Where the owner cannot be
found
II. In the absence
of the required
management
bodies
A. Substance I. Scope II. Boundaries 1. Type of boundary
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210
2
In the event of discrepancy between the existing land register plans and the boundary markings, the land register plans are presumed correct.
3
The foregoing presumption does not apply to areas designated by the canton as being in permanent danger of ground displacement.502
Art. 669
Every landowner is obliged, at the request of his or her neighbour, to
co-operate in establishing the boundary where it is unclear, whether by amendment of the land register plans or by affixing boundary markers.
Art. 670
Where boundaries are marked by features such as walls, hedges and
fences, such features are presumed to be jointly owned by the two neighbouring landowners.
Art. 671
1 Where a person uses materials belonging to another in building work on his or her own land or materials of his or her own on land belonging to another, such materials become an integral part of the parcel of land.
2
However, where such materials are used against the will of their owner, the latter is entitled to demand that the materials be removed and returned to him or her at the landowner's expense to the extent this is possible without causing disproportionate damage.
3
On the same condition, where the materials were used against the will of the landowner, the latter may demand that they be removed from his or her land at the expense of the builder.
Art. 672
1 Where the materials are not removed from the land, the landowner must provide appropriate compensation for the cost of the materials.
2
Where the landowner on whose land the building work was carried out acted in bad faith, the court may award full damages.
3
Where the owner of the materials used in the building work acted in bad faith, the damages awarded may not exceed the minimum value of the building work to the landowner.
502 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
2. Duty to
establish
boundaries
3. Co-ownership
of boundary
markers
III. Buildings on
the parcel of land 1. Land and building
materials a. Ownership b. Compensation
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192
210
Art. 673
Where the value of the building plainly exceeds the value of the land,
the party acting in good faith may request that ownership of both building and land be assigned to the owner of the materials in exchange for appropriate compensation.
Art. 674
1 Buildings and other structures encroaching from one parcel of land onto another remain part of the parcel from which they originate, providing their owner has a right in rem to their existence.
2
The right to encroach on neighbouring land may be recorded as an easement in the land register.
3
If an injured party fails to object in timely manner to an unauthorised encroachment, despite being aware of it, where justified in the circumstances the builder of the encroaching structure, provided he or she acted in good faith, may be granted ownership of the encroaching part thereof or of the land below it in exchange for appropriate compensation.
Art. 675
1 Buildings and other structures that are dug into or built onto land belonging to another person or otherwise permanently connected with that parcel of land on or below its surface may have a separate owner provided their existence is recorded as an easement in the land register.
2
The creation of rights to buildings in respect of individual storeys of a building is not permitted.
Art. 676
1 Pipes, cables and conduits for water, gas, electricity and the like located outside the parcel of land which they serve are, except where otherwise regulated, the property of the utility plant from which they come or to which they lead.503 2 Where the provisions of the law of neighbours do not apply, the encumbrance of parcels of land by rights in rem relating to such pipes, cables and conduits belonging to another person is established by way of easement.
503 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
c. Assignment of
land ownership
2. Encroaching
buildings
3. Building right
4. Pipes, cables,
conduits
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210
3
If the pipe, cable or conduit is visible, the easement is created when the pipe, cable or conduit is laid. In other cases, it is created by entry in the land register.504
Art. 677
1 Sheds, huts, shacks, cabins and the like retain their separate owner if they are constructed on land belonging to another person without the intention of becoming a permanent fixture.
2
Their existence is not recorded in the land register.
Art. 678
1 Where a person uses another person's plants on his or her own land or his or her own plants on another person's land, the same rights and obligations arise as for the use of building materials or for movable structures.
2
An easement corresponding to a building right may be created in respect of individual plants and plantations for a minimum of ten and a maximum of 100 years.505 3 The servient owner may request the termination of the easement before the end of the agreed duration in the event of the termination of a lease agreement concluded between him or her and the easement beneficiary concerning the use of the land. The court shall determine the financial consequences taking due account of all the circumstances.506
Art. 679
1 Where a person incurs or is at risk of damage because a landowner
acts in excess of his or her ownership rights, he or she may sue for abatement of the damage or for protection against any imminent damage and for damages.
2
Where a building or installation deprives a neighbouring parcel of land of certain properties, the aforementioned rights apply only if the 504 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
505 Amended by No I of the FA of 20 June 2003, in force since 1 Jan. 2004 (AS 2003 4121; BBl 2002 4721).
506 Inserted by No I of the FA of 20 June 2003, in force since 1 Jan. 2004 (AS 2003 4121; BBl 2002 4721).
507 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
5. Movable
structures
IV. Plants grown
on the parcel of
land
V. Landowner's
liability 1. Acts in excess of ownership
rights507
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194
210
regulations that applied at the time the building or installation was constructed were not complied with.508
a509 Where a landowner temporarily causes excessive and unavoidable
disadvantages to a neighbour while managing his or her parcel of land lawfully, in particular by building and thus causes loss or damage, the neighbour may only claim damages from the landowner.
Art. 680
1 Statutory restrictions on ownership exist irrespective of whether they are recorded in the land register.
2
Any lifting or modification thereof by agreement is invalid unless executed in the form of a public deed and recorded in the land register.
3
Public law restrictions on ownership may not be revoked or modified.
Art. 681
510 1 Statutory rights of pre-emption may also be exercised in the case of compulsory sale at auction, but only at the auction itself and on the conditions that apply to a sale to the highest bidder; in other respects statutory rights of pre-emption may be exercised subject to the conditions that apply to contractual rights of pre-emption.
2
The right of pre-emption becomes void if the land is sold to a person with a right of pre-emption of equal or higher rank.
3
Statutory rights of pre-emption may neither be inherited nor assigned. They take precedence over contractual rights of pre-emption.
a511 1 Where a purchase agreement is concluded, the vendor must notify persons with a right of pre-emption of the terms thereof.
508 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
509 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
510 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
511 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
2. Lawful
management of
the land
B. Limitations I. In general II. Restrictions
on alienation;
statutory right of
pre-emption 1. General principles
2. Exercise
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210
2
If a person wishes to exercise his or her right of pre-emption, he or she must assert it within three months of learning of the conclusion and terms of the purchase agreement. Such a right may no longer be exercised once two years have elapsed since the entry of the new owner in the land register.
3
During that time a person may exercise a right of pre-emption against any owner of the land.
b512 1 An agreement excluding or modifying a statutory right of preemption is valid only if executed in the form of a public deed. It may be entered under priority notice in the land register provided the right of pre-emption is held by the current owner of another parcel of land.
2
The beneficiary may waive his or her statutory right of pre-emption in writing once the event that triggers it has occurred.
Art. 682
513 1 Co-owners have a right of pre-emption against any person acquiring a share who is not a co-owner. If several co-owners exercise their right of pre-emption, the share is allocated to them in proportion to their existing shares.515 2 The owner of a parcel of land encumbered with a distinct and permanent building right shall also have a right of pre-emption in respect of that right over anyone wishing to acquire it, and the holder of the right has a right of pre-emption in respect of the parcel of land it encumbers, providing the land is used in the exercise of his or her right.
3
…516
512 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
513 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
514 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
515 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
516 Repealed by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), with effect from 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
3. Modification,
waiver
4. In respect of
co-ownership
and building
rights514
Swiss Civil Code
196
210
a517 Rights of pre-emption of agricultural enterprises and agricultural land
are also governed by the Federal Act of 4 October 1991518 on Rural land Rights.
Art. 683
519
Art. 684
1 In exercising their ownership rights, including in particular the right to run a business on his or her land, landowners are obliged to refrain from any excess detrimental to neighbouring properties.
2
In particular all harmful effects that are not justified by the location and character of the land or by local custom such as air pollution emissions of noxious vapours, noise, vibrations, radiation or the deprivation of sunlight or daylight are prohibited.521
Art. 685
1 When carrying out excavation or construction work, the owner is not permitted to damage the adjoining properties by causing their terrain to shift, exposing it to the risk of shifting or by weakening existing structures.
2
Buildings which contravene the provisions of the law of neighbours are subject to the provisions governing encroaching buildings.
Art. 686
1 The cantons may set minimum separation distances to be observed in excavation and construction works.
2
They have the right to issue further building regulations.
517 Inserted by Art. 92 No 1 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
518 SR 211.412.11 519 Repealed by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), with effect from 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
520 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
521 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
5. Right of preemption of farms
and farmland
III. Law of
neighbours 1. Excess detriment520
2. Excavation
and construction a. Rule b. Cantonal
regulations
Swiss Civil Code
197
210
Art. 687
1 Overhanging branches and roots encroaching beyond the boundary may be severed and kept by the neighbour if they are damaging his or her property and have not been removed within a reasonable time following his or her complaint in relation thereto.
2
If a landowner tolerates branches overhanging cultivated or developed land, he or she is entitled to the fruit that grows on them.
3
These provisions do not apply to adjoining parcels of woodland.
Art. 688
The cantons are authorised to set minimum separation distances for
plantations depending on the type of land and plants involved or to oblige the landowner to permit the overhanging branches or encroaching roots of fruit trees and to regulate or annul his or her right to take the fruit from such branches.
Art. 689
1 Every landowner is obliged to receive the waters flowing naturally from a higher-lying parcel of land, such as rain water, melting snow and water from unchannelled springs.
2
No person may alter the natural course of flow to his or her neighbour's detriment.
3
Water flowing to a lower-lying parcel of land and required by that property may be withheld only to the extent that such water is indispensable to the higher-lying parcel of land.
Art. 690
1 Where a higher-lying parcel of land is drained, the owner of lowerlying parcel of land is obliged to receive such water as previously flowed naturally onto his or her land without being entitled to compensation.
2
If he or she suffers damage as a result of drainage channels, he or she may require the owner of the higher-lying parcel of land to continue such channels through the lower-lying parcel of land at the latter's expense.
Art. 691
1 Every landowner is obliged to permit water conduits, drainage pipes, gas pipes and the like and subterranean or overhead cables to traverse his or her land in exchange for full compensation, to the extent that 3. Plants a. Rule
b. Cantonal
regulations
4. Flowing
waters
5. Drainage
6. Pipes, cables,
conduits a. Duty to permit
Swiss Civil Code
198
210
such works would be impossible or prohibitively expensive if they did not traverse his or her land.522 2 The right for pipes, cables and conduits to traverse an adjoining parcel of land may not be claimed on the basis of the law of neighbours in cases subject to compulsory purchase under cantonal or federal law.
3
At the request of the dominant or the servient owner, such rights shall be recorded in the land register as an easement at the expense of the dominant owner. The right for pipes, cables and conduits to traverse an adjoining parcel of land may be cited in opposition to a person acquiring a parcel of land in good faith, even if it is not registered.523
Art. 692
1 The servient owner is entitled to just and equitable consideration of his or her own interests.
2
Where justified by extraordinary circumstances, he or she may request that the piece of the land above which overhead pipes, cables and conduits are to be routed together with a reasonable portion of the surrounding land be purchased from him or her at its full value.
Art. 693
1 If circumstances change, the servient owner may request that the route of the pipe, cable or conduit be altered in accordance with his or her interests.
2
The costs of such re-routing are normally borne by the owner of the dominant property.
3
However, where justified by special circumstances, an appropriate portion of the costs may be charged to the servient owner.
Art. 694
1 Where a landowner does not have adequate access from his or her land to a public thoroughfare, he or she has the right to require his or her neighbours to grant him or her the necessary right of way in exchange for full compensation.
2
This right is in the first place exercised against the neighbour who, in the light of existing ownership and access circumstances, may most 522 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
523 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
b. Safeguarding
the interests of
the servient
landowner
c. Change of
circumstances
7. Rights of way a. Necessary right of way
Swiss Civil Code
199
210
reasonably be expected to grant such right of way, and secondly in respect of the neighbour for whom it is least damaging.
3
When determining the route of a right of way, the interests of both parties must be taken into consideration.
Art. 695
The cantons reserve the right to enact more detailed provisions which
govern the landowner's right to enter neighbouring land for the purposes of managing his or her own land or carrying out repairs or building works and which regulate rights of way for the purpose of tillage, watering cattle, transit over fallow ground or in the dead season, transit for timber gathering, and the like.
Art. 696
1 Rights of way established directly by law exist without need for registration.
2
However, if permanent they are noted in the land register.
Art. 697
1 The costs of enclosing a parcel of land are borne by its owner, subject to the provisions governing co-ownership of boundary markers.
2
Cantonal law may enact provisions governing the duty to enclose and the manner of enclosure.
Art. 698
The costs of any structures required for the exercise of rights under the
law of neighbours are borne by the landowners in proportion to their interests.
Art. 699
1 Any person has the right to enter woodlands and meadows and to gather wild berries, fungi and the like to the extent permitted by local custom except where the competent authority enacts specific limited prohibitions in the interests of conservation.
2
Cantonal law may enact more detailed regulations on access to land owned by others for the purposes of hunting and fishing.
Art. 700
1 If objects are carried onto another parcel of land by water, wind, avalanche or other force of nature or by chance event, or if animals such as livestock, swarms of bees, poultry and fish stray onto his or b. Other rights of
way
c. Notation in the
land register
8. Enclosure
9. Duty to
maintain
IV. Right of
access and to
ward off danger 1. Access 2. Retrieval of
driftage and the
like
Swiss Civil Code
200
210
her property, the landowner must grant the rightful owner access to his or her land to search for and retrieve them.
2
The landowner is entitled to claim damages for any damage caused and to that end has a special lien as to such objects and animals.
Art. 701
1 If a person is able to ward off imminent damage or present danger from himself or herself or others only by trespassing on land belonging to another, the latter is obliged to tolerate such trespass to the extent that such danger or damage would be considerably greater than the detriment caused by the trespass.
2
Appropriate compensation is owed for any resultant damage.
Art. 702
The Confederation, cantons and communes reserve the right to impose
restrictions on ownership that are in the public interest, and in particular that relate to building, fire and health regulations, forestry and road services, towpaths, erection of boundary markings and triangulation pillars, land improvements, fragmentation of landholdings, consolidation of agricultural land and building land, conservation of antiquities and natural monuments, preservation of areas of natural beauty and scenic vantage points and protection of mineral springs.
Art. 703
524 1 Where it is possible to carry out land improvements, such as watercourse modifications, drainage, irrigation, reforestation, path-building, land consolidation procedures and the like, only by collective endeavour and such endeavour has been approved by the majority of the landowners owning more than half of the land involved, the other landowners are obliged to participate. Landowners who choose not to participate in the decision-making process are deemed to consent.
Participation is recorded in the land register.
2
The cantons regulate the procedure. In particular, they must issue detailed rules on consolidation of landholdings.
3
Cantonal legislation may further facilitate the realisation of such land improvements and may declare that the corresponding provisions also apply to building land and to areas designated as being in permanent danger of ground displacement.525 524 Amended by Art. 121 of the Agriculture Act, in force since 1 Jan. 1954 (AS 1953 1073; BBl 1951 I 130).
525 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
3. Trespass to
ward off danger
or damage
V. Public law
restrictions on
ownership 1. In general 2. Land improvements
Swiss Civil Code
201
210
Art. 704
1 Springs are an integral part of the land and their ownership may be acquired only through ownership of the land from which they rise.
2
Rights to spring water on land owned by others are established as easements by entry in the land register.
3
Groundwater is deemed equivalent to springs.
Art. 705
1 Cantonal law may regulate, restrict or prohibit the diversion of spring waters to safeguard the public interest.
2
In the event of conflict between cantons, the final decision rests with the Federal Council.
Art. 706
1 Where springs and wells that enjoy considerable use or whose waters are collected for further use are cut off, diminished or contaminated by building works, installations or other measures to the detriment of their owners or rightful users, such persons are entitled to claim damages.
2
Where the damage was done neither intentionally nor through negligence, or the injured parties are themselves at fault, the court determines the amount and manner of compensation at its discretion.
Art. 707
1 If springs and wells that are indispensable for the exploitation or habitation of a parcel of land or for the supply of drinking water are cut off or contaminated, those affected have the right to demand that the status quo ante be restored where at all possible.
2
In other cases restoration of the status quo ante may be demanded only where this is justified by special circumstances.
Art. 708
1 Where springs located near to each other and belonging to different owners form a group rising from a common catchment basin, each of the owners may request that the springs be collectively captured and channelled to the rightful users in proportion to the existing volume of flow.
2
The costs of the common installations are borne by the rightful users in proportion to their respective interests.
3
If one user opposes the request, each user has the right to capture and divert his or her own spring in the normal manner, even if the volume C. Rights to
springs and wells I. Spring ownership and
spring rights
II. Diversion of
springs
III. Cutting off
springs 1. Damages
2. Restoration
IV. Community
of spring owners
Swiss Civil Code
202
210
of flow of the other springs is thereby diminished, and is liable to pay compensation only to the extent that his or her own spring is augmented by the new works.
Art. 709
The cantons have the right to determine the extent to which privately
owned springs, wells and streams may also be used by neighbours and other persons for drawing water, watering livestock and the like.
Art. 710
1 If a parcel of land lacks the water required for domestic and farming requirements and if such water cannot be obtained from anywhere else except at an entirely disproportionate cost and effort, the owner may request that a neighbour able to spare such water without suffering hardship allow him or her a share of the latter's spring or well to him or her in exchange for full compensation.
2
When determining which water source is thus affected, the interests of the person required to supply the water are the primary consideration.
3
Where circumstances change, a modification of the arrangement in place may be requested.
Art. 711
1 Where landowners make no use of springs, wells or streams, or make very little use thereof in comparison with their potential utility, they may be required to cede them in exchange for full compensation for supplying drinking water, fire hydrants or other uses in the public interest.
2
Such compensation may take the form of water supplied from the new installation.
Art. 712
Owners of drinking water utilities have the right to expropriate the
land surrounding their springs to the extent necessary to protect them from contamination.
V. Use of
springs
VI. Right to use
an essential
water source
VII. Duty to
cede 1. Water sources 2. Land
Swiss Civil Code
203
210
Chapter Three:526 Condominium
a 1 Condominium is a form of co-ownership of immovable property that gives the co-owner the exclusive right to make sole use of specific parts of a building thereon and design the interior of such parts.
2
Each condominium owner is free to manage, use and design the structure of his or her own parts of the building as he or she wishes but must not obstruct any other condominium owners in the exercise of their own rights or in any way damage the common parts of the building, fittings and installations or impair their functional effectiveness or appearance.
3
Each condominium owner is obliged to maintain his or her parts of the building in the manner required to preserve the sound condition and good appearance of the building as a whole.
b 1 The object of the exclusive right may be individual storeys or parts of a storey which must be self-contained with their own access and used either as dwellings or as self-contained units of rooms used for business or other purposes, although separate ancillary rooms are allowed.
2
The condominium owner may not be granted an exclusive right to the following:
1. the land on which the building stands and the building right by virtue of which it is constructed; 2. the parts of the building that are vital to the soundness, structure and stability of the building as a whole or of the units of other condominium owners or that determine the outward form and appearance of the building;
3. the fittings and installations that also serve the other condominium owners in the use of their units.
3
The deed of constitution or a subsequent agreement among the condominium owners executed in the same form may stipulate that other parts of the building are common property, failing which they are presumed to be the object of a exclusive right.
526 Inserted by No II of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
A. Definition
and object I. Definition II. Object
Swiss Civil Code
204
210
c 1 Condominium owners do not by law have first right of refusal in respect of a third party acquiring a share, but such right may be stipulated in the deed of constitution or by subsequent agreement and entered under priority notice in the land register.
2
Similarly, it may be stipulated that the alienation, encumbrance with usufruct or right of residence or letting of a unit is valid only if the other co-owners do not object by resolution made within 14 days of receiving notice of such transaction.
3
The objection is ineffective if made without good cause.527
d 1 Condominium is constituted by entry in the land register.
2
Such entry may be requested: 1. on the basis of an agreement between the condominium owners to constitute their shares as condominium;
2. on the basis of a declaration by the owner of the property or the holder of a distinct and permanent building right to form shares in co-ownership and to constitute the same as condominium.
3
In order to be valid, the constitution of condominium must be executed in the form of a public deed or, where provided for in a testamentary disposition or in a contract of division of estate, in the form prescribed by the law of succession.
e 1 The deed of constitution must specify the manner in which the property is divided into condominium units and define the share that each unit represents of the value of the property or of the building right expressed as fractions with a common denominator.529 2 Alteration of the size of a share requires the consent of all directly involved parties and the approval of the assembly of condominium owners; however, each condominium owner is entitled to seek rectification if his or her share has been defined incorrectly in error or is no 527 Amended by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
528 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
529 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
III. Power of
disposal
B. Creation and
extinction I. Deed of constitution
II. Layout of the
condominium
units and shares
in the property528
Swiss Civil Code
205
210
longer accurate owing to structural modifications to the building or its surroundings.
f 1 Condominium is extinguished on the loss of the property or the building right and its deletion from the land register.
2
Such deletion may be requested in accordance with a termination agreement or by a single condominium owner holding all the shares, but it requires the consent of all persons with rights in rem to the individual units which cannot be transferred to the property as a whole without detriment.
3
Any condominium owner may request termination of the condominium where:
1. more than half the value of the building has been destroyed and reconstruction would impose an onerous burden on him; or 2. the building has been divided into condominium units for more than 50 years and can no longer be used in accordance with the regulations due to its poor structural condition.530 4 Condominium owners wishing to maintain the condominium may prevent such termination by buying out the others.531
g 1 The provisions governing co-ownership regulate the authority to take administrative action and instruct construction work.
2
Except where such provisions are mandatory, they may be replaced by others set out in the deed of constitution or adopted by unanimous resolution of the assembly of condominium owners.
3
Moreover, each condominium owner is entitled to request that a set of rules governing administration and use be drawn up and noted in the land register, such rules being binding once accepted by resolution passed by a majority of the condominium owners who together represent more than one-half of the property and being subject to amendment by the same majority even if included in the deed of constitution.
4
Any amendment to the allocation of exclusive rights of use in accordance with the regulations shall also require the consent of the condominium owners directly affected.532
530 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
531 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
III. Extinction
C. Administration and use I. Applicable
provisions
Swiss Civil Code
206
210
h 1 The condominium owners bear the charges in relation to the communal parts of the property and the costs of joint administration in proportion to the value of their shares.
2
In particular, such charges and costs include: 1. regular maintenance, repairs and renovations of the communal parts of the parcel of land and the building and shared fittings and installations; 2. administration, including remuneration of the administrator; 3. public duties and taxes imposed collectively on the co-owners; 4. interest and capital repayments to lenders to whom the property is pledged or to whom the condominium owners are jointly and severally liable.
3
Where specific parts of the building, fittings or installations are of little or no benefit to certain condominium owners, the allocation of shared costs must take this into account.
i 1 The community of condominium owners is entitled to establish a lien on each condominium owner's unit as security for his or her portion of the shared costs over the previous three years.
2
Registration of the lien may be requested by the administrator or, where no administrator has been appointed, by any condominium owner so authorised by majority resolution or court order and by any person for whom the claim for shared costs has been distrained.
3
In other respects, the provisions governing the establishment of a building contractor's lien apply mutatis mutandis.
k The community of condominium owners has the same special lien that a lessor would have on the chattels located in the condominium owner's unit as security for shared costs over the previous three years.
l 1 The community of condominium owners acquires under its own name the revenue derived from its administrative activities, including in particular contributions from the individual condominium owners and the resultant funds, such as the renovation fund.
532 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
II. Communal
charges and
costs 1. Definition and distribution
2. Liability for
cost contributions a. Statutory lien
b. Special lien
III. Community's capacity to
act
Swiss Civil Code
207
210
2
The community of condominium owners may sue and collect debts in its own name and may be sued or subjected to debt enforcement proceedings.533
m 1 In addition to those rights stipulated in other provisions, the assembly of condominium owners has the following rights in particular:
1. to decide on all administrative matters outside the administrator's remit;
2. to appoint the administrator and supervise his or her activities; 3. to elect a committee or person to whom it may delegate administrative matters, including in particular the tasks of advising the administrator, superintending his or her management activities, and reporting and making recommendations to the assembly on such matters;
4. to approve the budget, accounts and division of costs among the condominium owners each year; 5. to establish a renovation fund for maintenance and renovation; 6. to safeguard the building against fire and other risks and to take out the customary liability insurance and, furthermore, to require any condominium owner who has fitted his or her unit out at extraordinary expense to pay an additional premium unless he or she has arranged supplementary insurance for his or her own account.
2
In the absence of any specific provisions in the law, the assembly of condominium owners and its delegates are subject to the provisions on governing bodies of associations and challenges to resolutions of associations.
n 1 The assembly of condominium owners is convened and chaired by the administrator, unless the assembly resolves otherwise.
2
Minutes are taken of the assembly's resolutions and held in safekeeping by the administrator or the chairman of the meeting.
o 1 Where a unit is owned by more than one person, these persons together have only one vote, to be cast by one of their number as their representative.
533 Amended by Annex No. 2 of the Civil Jurisdiction Act of 24 March 2000, in force since 1 Jan. 2001 (AS 2000 2355; BBl 1999 2829).
D. Organisation I. Assembly of condominium
owners 1. Competence and legal status
2. Convening
and chairing
meetings
3. Voting rights
Swiss Civil Code
208
210
2
Similarly, the owner and the usufructuary of a unit must agree on the exercise of their voting rights, failing which the usufructuary is deemed to hold the right to vote on all administrative matters with the exception of building work carried out for merely useful or decorative purposes or to enhance comfort or convenience.
p 1 The assembly of condominium owners is quorate if one half of the condominium owners representing one half of the shares in condominium, and in any event at least two condominium owners, are present or represented.
2
If the assembly is not quorate, a second meeting must be convened which may be held no earlier than ten days after the first.
3
The second meeting is quorate if one third of the condominium owners, and in any event at least two condominium owners, are present or represented.
q 1 If the assembly of condominium owners fails to appoint an administrator, any condominium owner is entitled to request the court to appoint one.
2
Other interested parties, such as the pledgee or insurer, have the same right to request court appointment of an administrator.
r 1 By resolution of the assembly of condominium owners, the administrator may be removed from his or her position at any time, subject to claims for compensation.
2
If the assembly of condominium owners refuses to remove the administrator despite good cause to do so, any condominium owner may, within one month, request the court to remove him or her.
3
A court-appointed administrator may not be removed prior to expiry of the period for which he or she was appointed.
s 1 The administrator shall take all action required for collective administration in accordance with the relevant legal provisions, the rules and resolutions passed by the assembly of condominium owners and must of his or her own accord take all measures urgently needed to prevent or remedy damage to the property.
2
He or she divides the communal costs and charges among the condominium owners, makes out the relevant invoices, collects contribu-
4. Quorum
II. Administrator 1. Appointment 2. Removal
3. Duties a. Implementation of provi-
sions and
resolutions
concerning
administration
and use
Swiss Civil Code
209
210
tions, manages the available funds and applies them as required by law.
3
He or she ensures that the condominium owners exercise their exclusive rights and use the communal parts of the property and the communal fittings and installations in accordance with the relevant legal provisions, regulations and house rules.
t 1 The administrator shall represent the condominium owners both as a community and as individuals in all external dealings relating to communal administration within the scope of his or her statutory duties.
2
Except in summary proceedings, the administrator must obtain the prior approval of the assembly of condominium owners to act as plaintiff or defendant in civil proceedings unless the matter is urgent, in which case such approval may be obtained retrospectively.
3
Declarations, demands, judgments and court orders addressed to the community of condominium owners are deemed duly notified once they are served on the administrator at his or her domicile or at the place where the property is situated.
Title Twenty: Chattel Ownership
Art. 713
Chattel ownership relates to movable physical objects and to forces of
nature that may be the subject of legal rights and which do not form part of any immovable property.
Art. 714
1 Transfer of chattel ownership requires the delivery of possession to the acquirer.
2
A person who in good faith receives possession of a chattel as owner will become its owner even if the transferor is not authorised to alienate it as soon his or her possession of it is protected according to the provisions governing possession.
Art. 715
1 Reservation of ownership in respect of a chattel transferred to the acquirer is only effective provided it is entered in the official register kept by the debt enforcement office at his or her current domicile.
2
Reservation of ownership is not permitted in livestock trading.
b. External
representation
A. Object
B. Forms of
acquisition I. Transfer 1. Delivery of possession
2. Reservation of
ownership a. In general
Swiss Civil Code
210
210
Art. 716
An object transferred under reservation of ownership may be reclaimed by the owner only on condition that he or she reimburse any payments made for it by the acquirer after deduction of an appropriate rental charge and compensation for wear and tear.
Art. 717
1 If as a result of a special legal relationship, the chattel remains in the transferor's possession, this transfer of ownership is null and void in relation third parties if the underlying intention was to disadvantage them or to circumvent the provisions governing the pledging of chattels.
2
The court shall rules on this at its discretion.
Art. 718
Ownership of an ownerless chattel is acquired by the act of taking it
into possession with the intention of becoming its owner.
Art. 719
1 Captured animals become ownerless if they regain their freedom and their owner fails to search for them immediately and persistently with a view to recapturing them.
2
Domesticated animals become ownerless once they regress to a feral state and no longer return to their masters.
3
Swarms of bees do not become ownerless by virtue of straying onto land belonging to others.
Art. 720
1 A person finding a lost object must inform its owner and, if the latter is unknown, either report the find to the police or himself take appropriate steps to publicise the find and trace the owner.
2
He or she has a duty to report the find to the police if the value of the object clearly exceeds ten francs.
3
A person who finds an object in an occupied house or on premises used for public services or public transport must deposit it with the head of the household, the tenant or the supervisor.
534 Amended by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
b. Transactions
involving
payment by
instalments
3. Acquisition
without possession
II. Appropriation 1. Ownerless chattels
2. Escaped
animals
III. Found
property 1. Reporting, tracing a. In general534
Swiss Civil Code
211
210
a535 1 A person who finds a lost animal must, subject to Art. 720 para. 3, inform the owner or, if the latter is unknown, report his or her find.
2
The cantons designate the authority to which such finds must be reported.
Art. 721
1 A find must be held in appropriate safekeeping.
2
If it requires expensive maintenance or is susceptible to rapid deterioration, or if the police or a public body has held it for more than one year, it may be sold at public auction with the prior authorisation of the competent authority.
3
The proceeds of sale at auction replace the object.
Art. 722
1 A person who has discharged his or her duties as finder acquires ownership of the find if it has not been possible to trace the rightful owner within five years of the announcement or public notice being given of the find.
1bis
In the case of animals kept as pets rather than for investment or commercial purposes, the period is two months.536 1ter If the finder puts the animal in a home with the intention of renouncing its ownership, on expiry of the two-month period the animal home is at liberty to dispose of the animal as it sees fit.537 2
If the find is returned to its owner, the finder is entitled to compensation for all outlays and to a suitable finder's reward.
3
In the case of a find made in an occupied house or on premises used for public services or public transport, the head of the household, tenant or supervisor is deemed to be the finder but is not entitled to any finder's reward.
Art. 723
1 If an object of value is found in circumstances indicating with certainty that it has lain buried or hidden so long that it will not be possible to trace its owner, it is treated as treasure trove.
535 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806). Para. 2 comes into force on 1 April 2004.
536 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
537 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
b. Animals
2. Safekeeping
and auction
3. Acquisition of
ownership,
return
4. Treasure trove
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2
Subject to the provisions governing objects of scientific value, treasure trove belongs to the owner of the land or chattel where it was found.
3
The finder is entitled to an appropriate finder's reward not exceeding one-half of the treasure's value.
Art. 724
1 Ownerless natural specimens and antiquities of scientific value are the property of the canton on whose territory they are found.538 1bis Such objects must not be alienated without the consent of the competent cantonal authorities. They may not be purchased in good faith or acquired through adverse possession. There is no time limit on the canton's right to recover them.539 2 The owner of the land on which such objects are found is obliged to permit their excavation in exchange for compensation for the damage caused.
3
The finder, and in the case of treasure trove also the owner is entitled to an appropriate finder's reward not exceeding one-half of the value of the find.
Art. 725
1 If chattels are carried onto a person's property by water, wind, avalanche or other force of nature or by chance event, or if animals belonging to others stray onto his or her property, such a person has the rights and obligations of the finder of a lost object.
2
If a swarm of bees flies into an occupied beehive belonging to another person, the owner of that hive acquires said swarm without obligation to compensate.
Art. 726
1 If a person has processed or reworked an object that does not belong to him, the newly created object becomes the property of that person if the work is more valuable than the material, failing which it belongs to the original owner.
2
Where the person doing such work did not act in good faith, the court may award the newly created object to the original owner even if his or her work is more valuable than the material.
3
Claims for damages and unjust enrichment are reserved.
538 Amended by Art. 32 No 1 of the Cultural Property Transfer Act of 20 June 2003, in force since 1 June 2005 (AS 2005 1869; BBl 2008 535).
539 Inserted by Art. 32 No 1 of the Cultural Property Transfer Act of 20 June 2003, in force since 1 June 2005 (AS 2005 1869; BBl 2008 535).
5. Objects of
scientific value
IV. Driftage
V. Processing
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Art. 727
1 If chattels belonging to different owners are mixed or joined together such that they may no longer be separated without substantial damage or prohibitive labour and expense, those involved acquire joint ownership rights in the new object in proportion to the value of the constituent parts at the time that they were mixed or joined.
2
If one chattel is mixed with or joined to another such that it acquires the character of a secondary component of the latter, the entire object belongs to the owner of the primary component.
3
Claims for damages and unjust enrichment are reserved.
Art. 728
1 If a person has possessed a chattel belonging to another person uninterruptedly and without challenge for five years believing in good faith that he or she owns it, he or she becomes its owner by adverse possession.
1bis
In the case of animals kept as pets rather than for investment or commercial purposes, the period is two months.540 1ter Subject to exceptions prescribed by law, the time limit for adverse possession in the case of objects of cultural heritage within the meaning of Art. 2 para. 1 of the Cultural Property Transfer Act of 20 June 2003541 is 30 years.542 2 Involuntary loss of possession does not interrupt adverse possession provided the possessor regains the chattel within one year or by means of legal action brought within the same time limit.
3
The computation, interruption and suspension of adverse possession time limits are governed mutatis mutandis by the provisions on the time limitation of debts.
Art. 729
Even where possession has been lost, ownership of the chattel is not
extinguished until the owner relinquishes his or her right or until another person subsequently acquires ownership.
540 Inserted by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5806).
541 SR
444.1
542 Inserted by Art. 32 No 1 of the Cultural Property Transfer Act of 20 June 2003, in force since 1 June 2005 (AS 2005 1869; BBl 2008 535).
VI. Joining and
mixing chattels
VII. Adverse
possession
C. Loss
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Division Two: Limited Rights in rem Title Twenty-One: Easements and Real Burdens Chapter One: Easements
Art. 730
1 A parcel of land may be encumbered in favour of another property such that the servient owner must permit the owner of the dominant property to exercise certain rights over it to or may not exercise certain of the rights attaching to his or her property for the benefit of the owner of the dominant property.
2
An obligation to carry out certain acts may only be accessory to an easement. Any person acquiring the dominant or servient property is only bound by such an obligation if it is based on an entry in the land register.543
Art. 731
1 An easement is created by entry in the land register.
2
The provisions governing land ownership apply to the acquisition or registration of an easement, except where otherwise provided.
3
Adverse possession of an easement is possible only in respect of parcels of land which may be possessed adversely.
Art. 732
544 1 The legal transaction creating an easement is only valid if done as a
public deed.
2
If in the circumstances the exercise of the easement is limited to part of the dominant property and if the geographical location is not sufficiently identifiable in the certificate of legal title, it must be shown in a diagram in an extract of the plan for the land register.
Art. 733
The owner of a property may create an easement on a property in
favour of another property which he or she also owns.
543 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
544 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
A. Object
B. Creation and
extinction I. Creation 1. Registration 2. Legal
transaction
3. Creation in
favour of own
property
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Art. 734
An easement is extinguished with the deletion of its registration or the
complete loss of either the servient or the dominant property.
Art. 735
1 If the beneficiary of an easement becomes the servient owner, he or she may have the easement deleted from the land register.
2
If it is not deleted, the easement remains in place as a right in rem.
Art. 736
1 If an easement is of no value to the dominant property, the servient owner may request its deletion.
2
If the dominant property still derives a benefit from the easement but this is minor and disproportionate to the encumbrance, the easement may be partly or wholly cancelled in return for compensation.
Art. 737
1 The beneficiary is entitled to take all measures necessary to preserve and exercise the easement.
2
However, he or she is obliged to exercise his or her rights as benignly as possible.
3
The servient owner must not do anything to obstruct the exercise of the easement or render it more difficult.
Art. 738
1 The land register entry for an easement defines the scope of the easement, provided it clearly indicates the attendant rights and duties.
2
Within the limits of such entry, the scope of the easement may be inferred from the reason for its creation or from the fact that it has been exercised unchallenged and in good faith for some length of time.
Art. 739
Additional encumbrances may not be imposed on the servient owner if
the needs of the dominant property change.
Art. 740
In the absence of any other specific arrangement in a given case,
cantonal law and local custom shall govern rights of way, such as footpaths, bridle paths, carriageways, field paths, rights of transit in II. Extinction 1. In general 2. Amalgamation
3. By court order
C. Nature I. Scope 1. In general 2. As defined by
land register
entry
3. If needs
change
4. Cantonal law
and local custom
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the dead season or for carting wood, rights of pasture, of transit for watering cattle or for irrigation and similar rights.
a545 1 If two or more beneficiaries benefit from common fixtures based on the same easement and if no other agreement exists, the provisions applicable to co-owners apply by analogy.
2
The right to leave the community by waiving the easement may be excluded for a maximum of 30 years by agreement in the form specified for the easement agreement. The agreement may be noted in the land register.
Art. 741
1 The beneficiary is responsible for maintaining any fixtures required for the exercise of an easement.
2
If the fixture also serves the interests of the servient owner, both parties are responsible for its maintenance in proportion to their interests. An alternative arrangement is binding on the acquirer of the dominant and the acquirer of the servient property if there is proof thereof in the land register.546
Art. 742
1 If only part of a property is affected by the exercise of an easement, the servient owner is entitled, provided he or she can show a legitimate interest and bears the cost, to request that the right be transferred to another location which is no less suitable for the beneficiary.
2
He or she is entitled to do so even if the easement is recorded in the land register as being in a specific location.
3
…548
545 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
546 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
547 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
548 Repealed by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
5. In the case of
two or more
beneficiaries
II. Duty of
maintenance
III. Relocation of
the encumbrance547
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Art. 743
549 1 If the dominant property is partitioned, the easement normally continues to exist in favour of each part of the dominant property.
2
If according to the documentary evidence or the circumstances the exercise of the easement is limited to individual parts of the property, it must be deleted in respect of the other parts.
3
The revision procedure is governed by the regulations on the deletion and amendment of land register entries.
Art. 744
550
Art. 745
1 A usufruct may be held over chattels, immovable property, rights or assets.
2
Unless otherwise provided, it confers complete enjoyment of the object on the usufructuary.
3
A usufruct of immovable property may be limited to a specific part thereof.551
Art. 746
1 A usufruct of chattels or debts is established by transfer to the acquirer and a usufruct of immovable property by entry in the land register.
2
The provisions governing ownership apply to the acquisition of a usufruct of chattels and of immovable property as well as to entry in the land register, except where otherwise provided.
Art. 747
552
550 Repealed by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
551 Inserted by No I of the FA of 20 June 2003, in force since 1 Jan. 2004 (AS 2003 4121; BBl 2002 4721).
552 Repealed by No I 2 of the FA of 5 Oct. 1984, with effect from 1 Jan. 1988 (AS 1986 122; BBl 1979 II 1191).
IV. Partition of a
property
A. Usufruct I. Object II. Establishment 1. In general 2. …
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Art. 748
1 Usufruct is extinguished in the event of the complete loss of the object to which it applies and in the case of immovable property on deletion of the entry from the land register where the entry was required to establish the usufruct.
2
Other grounds for extinction, such as the passage of time or the renunciation or death of the usufructuary, confer on the owner only a right to apply for the deletion of the entry.
3
A statutory usufruct ends on cessation of its cause.
Art. 749
1 Usufruct ceases with the death of the usufructuary and in the case of legal entities on their dissolution.
2
In the case of legal entities, however, it may not last more than 100 years.
Art. 750
1 The owner of the object of a usufruct is not obliged to replace or restore the object if it has been destroyed.
2
If it is replaced or restored the usufruct is restored with it.
3
If an object that has been destroyed is replaced, as may be the case with compulsory purchase and insurance indemnities, the usufruct continues on the replacement object.
Art. 751
When the usufruct ends, the person in possession of the object must
return it to the owner.
Art. 752
1 The usufructuary is liable for complete loss or deterioration of the object, unless he or she shows that he or she was not at fault.
2
He or she must replace any items which have been used up if such consumption is not intrinsic to the use of the object.
3
He or she is not obliged to compensate for any depreciation caused by the proper use of the object.
Art. 753
1 If the usufructuary has of his or her own free will incurred costs or made improvements, on return of the object he or she may request III. Extinction 1. Grounds 2. Duration
3. Replacement
on extinction of
usufruct
4. Return a. Duty
b. Liability
c. Costs
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compensation in accordance with the provisions governing agency without authority.
2
He or she is entitled to remove any fixtures he or she has installed for which the owner is not prepared to pay compensation; he or she is, however, obliged to restore the object to its previous condition.
Art. 754
The owner's right to compensation for alterations or depreciation and
the usufructuary's right to compensation for expenditure or to remove fixtures are limited to one year after the return of the object.
Art. 755
1 The usufructuary has the rights of possession, use and enjoyment of the object.
2
He or she is responsible for looking after it.
3
In the exercise of these rights, he or she must exercise reasonable care.
Art. 756
1 Natural fruits belong to the usufructuary if they have ripened during the period of the usufruct.
2
The person who has cultivated the land is entitled to claim equitable compensation for his or her costs from the person who receives the ripe fruits, whereby this compensation should not exceed their value.
3
Constituent parts of the usufruct other than fruits or produce belong to the owner.
Art. 757
Interest on usufructuary capital and other periodic returns accrue to
the usufructuary from the day on which the usufruct begins until the day on which it ends, even if they mature at a later date.
Art. 758
1 Unless it is a strictly personal right, the exercise of the usufruct may be assigned to another person.
2
The owner is entitled to assert his or her rights directly against such person.
5. Limitation of
compensation
rights
IV. Scope 1. Rights of the usufructuary a. In general b. Natural fruits
c. Interest
d. Assignability
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Art. 759
The owner may object to any unlawful or inappropriate use of the
object.
Art. 760
1 The owner is entitled to request security from the usufructuary providing he or she may show that his or her rights are jeopardised.
2
He or she is entitled to request security without such showing and already before transfer where consumable objects or securities are the object of the usufruct.
3
If securities are the object of the usufruct, their deposit constitutes sufficient security.
Art. 761
1 A person who has transferred an object as a gift while reserving a personal right of usufruct may not be required to provide security.
2
The obligation to provide security in the case of statutory usufruct is subject to the specific rules governing the legal relationship.
Art. 762
If the usufructuary fails to provide security within the reasonable time
limit set for that purpose, or if he or she persists in using the object unlawfully despite the owner's objections, the court may dispossess him or her of the object until further notice and appoint a trustee.
Art. 763
The owner and the usufructuary have the right at any time to request
that a publicly notarised inventory of the objects subject to the usufruct be drawn up at their joint expense.
Art. 764
1 The usufructuary must preserve the object in its original condition and of his or her own accord carry out such repairs and renovations as constitute normal maintenance.
2
If more substantial work or measures are necessary to protect the object, the usufructuary must inform the owner and allow such work to be carried out.
3
If the owner does not attend to the matter, the usufructuary is authorised to take the necessary steps at the owner's expense.
2. Rights of the
owner a. Supervision b. Security
c. Security in the
case of gifts and
statutory
usufruct
d. Consequence
of failure to
provide security
3. Inventory
4. Costs a. Preservation of the object
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Art. 765
1 The usufructuary must bear the costs of the normal maintenance and administration of the object, the interest on the attendant debt and taxes and other duties for the duration of his or her rights over the object.
2
If the taxes and duties are payable by the owner, the usufructuary must compensate him or her to the same extent.
3
All other charges are borne by the owner, but if the usufructuary does not advance the owner the necessary funds on request, he or she is entitled to dispose of parts of the usufruct for this purpose.
Art. 766
In the case of a usufruct of assets, the usufructuary must pay interest
on the debts but, where justified in the circumstances, is entitled on request to be released from that obligation by redemption of the debt so that afterwards the usufruct is confined to the remainder of the assets.
Art. 767
1 The usufructuary must insure the object in favour of the owner against fire and other risks to the extent such insurance is required under the duty of care required by local custom.
2
Where this is the case, and also where a usufruct is established on an already insured object, the usufructuary bears the costs of the insurance for the duration of the usufruct.
Art. 768
1 The usufructuary of immovable property must ensure that it is not exploited beyond the normal limits by the type of use to which it is put.
2
To the extent that fruits are collected beyond such limits they belong to the owner.
Art. 769
1 The usufructuary must not change the intended use of the immovable property in a manner that is significantly detrimental to the owner.
2
He or she must neither transform nor substantially modify the object.
3
He or she may dig quarries, marl pits, peat cuttings and the like only after giving prior notice to the owner and on condition that the intended use of the immovable property is not substantially changed.
b. Maintenance
and administration
c. Duty to pay
interest on
usufruct of assets
d. Insurance
V. Special cases 1. Land a. Fruits b. Use
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Art. 770
1 The usufructuary of woodland is entitled to farm it within the limits of a reasonable business plan.
2
Both owner and usufructuary may require compliance with a plan which takes due account of their rights.
3
Where there is large-scale loss of woodland caused by storm, snow, fire, insect infestation or other factors, either the exploitation must gradually be reduced or the business plan adapted to the changed circumstances; income realised from the clearing of timber must be invested at interest and serves as compensation for the loss of woodland.
Art. 771
The provisions governing the usufruct of woodland apply mutatis
mutandis to the usufruct of objects, such as mines, whose use involves the extraction of substances from the earth.
Art. 772
1 In the absence of an agreement to the contrary, the usufructuary becomes the owner of consumable objects but is liable to replace the value they had at the beginning of the usufruct.
2
Where any other chattels which have been valued are transferred to the usufructuary he or she may, in the absence of an agreement to the contrary, freely dispose of them but is liable for their replacement if he or she exercises such right.
3
Agricultural equipment, herds of animals, stores of goods and the like may be replaced with objects of the same kind and quality.
Art. 773
1 A usufruct of debts entitles the usufructuary to retain the realised revenue.
2
Notices of termination to the debtor and dispositions relating to securities subject to a usufruct must be made jointly by the creditor and the usufructuary; notices of termination by the debtor must be addressed to both.
3
If a debt is at risk, the creditor and the usufructuary have a mutual right to request each other's consent to such measures as are required to ensure diligent administration.
c. Woodland
d. Mines
2. Consumables
and valued
chattels
3. Claims a. Scope
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Art. 774
1 If the debtor is not specifically authorised to repay either the creditor or the usufructuary, he or she must pay them jointly or deposit the amount.
2
The benefit received, such as the repayment of the principal, if under the usufruct.
3
Both creditor and usufructuary are entitled to a secure, interestbearing reinvestment of the principal.
Art. 775
1 The usufructuary has the right to request the assignment of the debts and securities over which he or she has a usufruct within three months of the beginning thereof.
2
Once assignment has been effected, he or she is liable to the former creditor for the value of the debts and securities as at the date of assignment and is required to provide security for that amount unless waived by the creditor.
3
If the creditor has not waived his or her right to security, the assignment becomes effective only once security has been posted.
Art. 776
1 The right of residence is the right to live in all or part of a building.
2
It is neither transferable nor heritable.
3
It is subject to the provisions governing usufruct unless the law provides otherwise.
Art. 777
1 The scope of the right of residence is generally tailored to the personal requirements of the usufructuary.
2
However, unless the right is expressly restricted to the person of the holder, he or she may share the residence with his or her family and household.
3
If the right of residence is limited to part of a building, the holder may use the fittings and installations intended for common use.
Art. 778
1 If the right of residence is exclusive, the usufructuary bears the costs of ordinary maintenance.
2
If the right of residence is exercised jointly with the owner, the latter bears the maintenance costs.
b. Repayments
and reinvestment
c. Right to
assignment
B. Right of
residence I. In general II. Rights of the
usufructuary
III. Maintenance
costs
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Art. 779
1 Immovable property may be encumbered with an easement entitling a third party to erect or maintain a construction above or below ground on such land.
2
Unless otherwise agreed, this right is transferable and heritable.
3
If the building right has the character of a distinct and permanent right it may be recorded in the land register as immovable property.
a554 1 The legal transaction creating a building right is only valid if done as a public deed.
2
If the remuneration for the building right and any other contractual provisions should be noted in the land register, they are also only valid if done as a public deed.
b555 1 Contractual provisions on the nature and scope of a building right, such as location, design, size and purpose of the buildings, as well as on the use of land which, although not built on, is used in the exercise of the building right, are binding on every new owner of the right and the servient property.
2
Additional contractual provisions may be noted in the land register, if the parties so agree.557
c558 When the building right expires, any existing construction reverts to the landowner and becomes an integral part of his or her parcel of land.
553 Amended by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
554 Inserted by No I of the FA of 19 March 1965 (AS 1965 445; BBl 1963 I 969). Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
555 Inserted by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
556 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
557 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
558 Inserted by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
C. Building right I. Object and entry in the land
register553
II. Legal
transaction
III. Nature,
scope and
noting556
IV. Consequences of expiry 1. Reversion
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d559 1 The landowner must pay the holder of the expired right adequate compensation for the buildings which have reverted to his or her ownership, but such compensation is subject to the outstanding claims of creditors to whom the building right was pledged as security and is not payable to the holder of the building right without their consent.
2
If the compensation has neither been paid nor secured, the holder of the expired right or a creditor to whom the building right was pledged as security may request that a mortgage right be registered in place of and with the same rank as the expired right as security for the compensation claim.
3
Such registration must be made within three months of expiry of the building right.
e560
f561 If the holder of the building right grossly violates his or her right in rem or his or her contractual obligations, the owner is entitled to premature reversion by requesting that the building right with all rights and encumbrances be transferred back to him or her.
g562 1 The right of reversion may be exercised only provided adequate compensation is paid for the reverting buildings, the amount payable being susceptible to reduction if the holder of the building right is at fault.
2
The building right will not be transferred to the owner until the compensation has been paid or secured.
559 Inserted by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
560 Inserted by No I of the FA of 19 March 1965 (AS 1965 445; BBl 1963 I 969). Repealed by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
561 Inserted by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
562 Inserted by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
2. Compensation
V. Premature
reversion 1. Prerequisites 2. Exercising the
right of reversion
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h563 The provisions governing the exercise of the right of reversion apply
to all rights reserved by the landowner to terminate or reclaim the building right prematurely in the event of breach of duty.
i564 1 Provided the building right is recorded in the land register, the landowner is entitled to established a lien thereon against each current holder as security for up to three annual payments.
2
Where the remuneration does not consist of equal annual payments, the landowner is entitled to record a statutory lien for an amount aggregating three annual payments.
k565 1 The lien may be recorded at any time during the existence of the building right and is exempt from deletion in compulsory sale proceedings.
2
The provisions governing recording of a building contractor's lien apply mutatis mutandis.
l566 1 A building right may be established as a distinct right for a maximum of 100 years.
2
It may be prolonged at any time for a further period of up to 100 years in the same form as that required for its establishment, but any obligation to do so stipulated in advance is not binding.
Art. 780
1 The right of access to a water source on a parcel of land owned by another encumbers such land with a servitude permitting the drawing and channelling-off of water.
2
Unless otherwise agreed, the right is transferable and heritable.
3
If the right of access to water is distinct and permanent, it may be recorded in the land register as immovable property.
563 Inserted by No I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
564 Inserted by section I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
565 Inserted by section I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
566 Inserted by section I of the FA of 19 March 1965, in force since 1 July 1965 (AS 1965 445; BBl 1963 I 969).
3. Other
applicable cases
VI. Liability for
remuneration for
the right 1. Right to establish a lien
2. Registration
VII. Maximum
duration
D. Right of
access to water
sources
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Art. 781
1 An owner may establish other servitudes on his or her property in favour of any person or group if such servitudes meet a particular need, such as rights of access for shooting practice or rights of way.
2
Unless otherwise agreed, such servitudes are non-transferable and their nature and scope is based on the beneficiaries' normal needs.
3
In other respects they are subject to the provisions governing easements.
a567 The beneficiaries of an easement recorded in the land register are
subject by analogy to the provisions on judicial measures in the event that the owner cannot be found or in the absence of the required management bodies of a legal entity.
Chapter Three: Real Burdens
Art. 782
1 A real burden obliges an owner of immovable property to fulfil an obligation to a beneficiary for which he or she is liable solely with the immovable property.
2
The current owner of another property may be designated as the beneficiary.
3
Other than in the case of public law real burdens, a real burden may have as its object only one obligation, which is determined either by the nature of the servient property or the economic needs of the benefited property.568
Art. 783
1 A real burden is established by recording in the land register.
2
The entry must stipulate a total value for the real burden denominated in Swiss currency which, in the case of periodic payments and in the absence of any agreement to the contrary, shall equal twenty times the annual payment.
567 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
568 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
E. Other
servitudes
F. Judicial
measures
A. Object
B. Establishment
and extinction I. Establishment 1. Registration and form of
acquisition
Swiss Civil Code
228
210
3
The provisions governing land ownership apply to the acquisition or registration of real burdens, unless otherwise provided.
Art. 784
569
The establishment of public law real burdens and their effect in relation to third parties acting in good faith is governed by analogy by the provisions of cantonal law on statutory liens.
Art. 785
570
Art. 786
1 A real burden is extinguished on deletion of the entry or on the complete loss of the servient property.
2
In the case of redemption, replacement or other causes of extinction, the burdened owner acquires a right against the beneficiary for the deletion of the entry.
Art. 787
1 The creditor may request redemption of the real burden by agreement and also:571
1.572 if the servient property has been divided and the creditor does not accept the transfer of the debt to the divided parts; 2. if the owner reduces the value of the land without providing other security by way of replacement; 3. if the debtor is in arrears for three years' worth of performance.
2
If the creditor requests redemption due to the division of the property, the he or she must give one year's notice of termination within one month of the transfer becoming legally binding.573
569 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
570 Repealed by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
571 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
572 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
573 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
2. Public law
real burdens
II. Extinction 1. In general 2. Redemption a. By the creditor
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229
210
Art. 788
1 The debtor may request redemption of the real burden by agreement, and also:
1. if the beneficiary fails to abide by the agreement establishing the real burden;
2. if the real burden has been in existence for thirty years, even where a longer duration or a charge in perpetuity was agreed.
2
If the debtor wishes to redeem the charge after thirty years, he or she must in every case give notice of termination one year in advance.
3
The real burden may not be redeemed in such manner if it is linked with a perpetual easement.
Art. 789
The redemption sum is equal to the amount recorded in the land
register as the total value of the real burden, unless its real value is shown to be less.
Art. 790
1 A real burden is not subject to prescription.
2
Each individual obligation is subject to prescription from the time it becomes the obligor's personal debt.
Art. 791
1 The real burden creditor has no personal claim against the debtor, but only the right to satisfaction from the servient property.
2
However, three years after it if due, each individual obligation becomes a personal obligation for which the property is no longer liable.
Art. 792
1 If the land changes ownership, the new owner automatically becomes the obligor under the real burden.
2
If the land is divided, the owners of the divided parts become debtors under the real burden. The debt is apportioned over the divided parts of the property in accordance with the provisions on mortgage contracts.574 574 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
b. By the debtor
c. Redemption
sum
3. Prescription
C. Scope I. Creditor's rights
II. Debt liability
Swiss Civil Code
230
210
Title Twenty-Two: Mortgages Chapter One: General Provisions
Art. 793
1 A mortgage may be created on immovable property in the form of a mortgage contract or a mortgage certificate.575 2
No other types of mortgage are permitted.
Art. 794
1 Whenever a mortgage is created, a specific amount denominated in Swiss currency must be indicated as the debt.
2
If the amount of the debt is unspecified, a maximum amount must be indicated up to which the property is liable for all claims of the creditor.
Art. 795
1 The interest payable may be set at any level at the parties' discretion within the legal limits imposed to prevent abusive interest rates.
2
Cantonal law may provide for a maximum permissible interest rate for debts secured by mortgages.
Art. 796
1 A mortgage may be created only on immovable property recorded in the land register.
2
The cantons may prohibit or enact special provisions to regulate the creation of mortgages over publicly owned land or over common land and pastures owned by corporations, and over any associated rights of use.
Art. 797
1 Where a mortgage is created, the immovable property that it encumbers must be clearly specified.
2
Parts of a property may not be made subject to a mortgage unless the division of the property has been recorded in the land register.
575 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
A. Requirements I. Types II. Form of the
debt 1. Amount
2. Interest
III. Immovable
property 1. Property subject to a
charge
2. Specification a. In the case of a single property
Swiss Civil Code
231
210
Art. 798
1 A mortgage right may be created on two or more properties for a single debt provided the properties are all owned by the same person or by debtors who are jointly and severally liable.
2
In all other cases where more than one property is made subject to a mortgage as security for a single debt, each of the properties shall be encumbered for a specified portion of the total debt.
3
Unless otherwise agreed, the total amount secured by the mortgage is divided in proportion to the values of the properties.
a576 The Federal Act of 4 October 1991577 on Rural Land Rights applies to
the establishment of mortgages over agricultural properties.
Art. 799
1 Subject to exceptions provided by law, a mortgage is created by its recording in the land register.
2
A legal transaction creating a mortgage is valid only if done as a public deed.578
Art. 800
1 In the case of joint ownership of a property, each joint owner may create a mortgage over his or her share.
2
In the case of collective ownership, the property may be made subject to a mortgage only as a whole and in the name of all co-owners.
Art. 801
1 A mortgage is extinguished on deletion of the entry or the complete loss of the property.
2
Extinction as a result of compulsory purchase is governed by federal and cantonal compulsory purchase law.
576 Inserted by Art. 92 No 1 of the FA of 4 Oct. 1991 on Rural Land Rights, in force since 1 Jan. 1994 (AS 1993 1410; BBl 1988 III 953).
577 SR 211.412.11 578 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
b. In the case of
more than one
property
3. Agricultural
properties
B. Creation and
extinction I. Creation 1. Registration 2. In the case of
joint ownership
II. Extinction
Swiss Civil Code
232
210
Art. 802
1 In the case of land consolidation procedures carried out with the assistance or under the supervision of the public authorities, the mortgage rights assigned are transferred with the same ranking to the land allotted by way of replacement.
2
Where one parcel of land replaces several parcels which are subject to a mortgage as security for different debts, or not all of which are subject to a mortgage, the liens will be applied to the single parcel of land and their ranking preserved wherever possible.
Art. 803
The debtor is entitled to redeem liens on parcels of land involved in a
land consolidation procedure by giving three months' notice expiring on the date on which such consolidation takes effect.
Art. 804
1 Where monetary compensation is received in connection with the consolidation of parcels of land subject to mortgages, such funds are distributed among the creditors according to their rank or, if of equal rank, in proportion to the size of their claims.
2
Such compensation must not be paid to the debtor without the creditors' consent if it exceeds one-twentieth of the secured debt, or if the new parcel of land no longer provides sufficient security.
Art. 805
1 A mortgage right encumbers the entire property including all its constituent parts and accessories.
2
If accessories, such as machines or hotel furnishings, are expressly listed in the mortgage agreement and noted as such in the land register, they are treated accordingly unless it is shown that the law precludes their qualification as accessories.
3
Rights of third parties to the accessories are reserved.
Art. 806
1 If the mortgaged property is let, the mortgage covers the rent claims which accrue between the date on which foreclosure proceedings are commenced or the date on which the debtor is declared bankrupt and the date of realisation.
2
Tenants and lessees are bound by the mortgage only once they have been informed of the enforcement proceedings or the bankruptcy has been published.
III. Charges on
consolidated
land 1. Transfer of liens
2. Redemption
by the debtor
3. Monetary
compensation
C. Effect I. Extent of security
II. Rent
Swiss Civil Code
233
210
3
Transactions by the property owner involving claims for unmatured rent and any actions of distraint by other creditors are invalid in respect of any mortgage creditor who initiated foreclosure proceedings before the rent claims matured.
Art. 807
Claims for which a mortgage has been recorded in the land register are
not subject to prescription.
Art. 808
1 If the owner reduces the value of the mortgaged property, the creditor may request that the court prohibit any further detrimental action.
2
The creditor may be authorised by the court to take appropriate measures and may do so even without authorisation if there is risk in delay.
3
He or she may request compensation for the costs of such measures from the owner and shall acquire a lien on the property for the corresponding amount. This lien does not require to be recorded in the land register and takes precedence over all other registered encumbrances.579 4 If the amount of the lien exceeds 1000 francs and the lien is not recorded in the land register within four months of completion of the measures, it may not cited in opposition to third parties who rely on the land register in good faith.580
Art. 809
1 If the property has depreciated, the creditor has the right to request that the debtor secure his or her debts or restore the property to its previous state.
2
He or she may also demand security in the case of imminent depreciation.
3
If the debtor does not comply within the time limit set by the court, the creditor may request redemption of such portion of the debt as is appropriate to compensate for the reduced degree of security.
579 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
580 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
III. Prescription
IV. Safeguarding
powers 1. In the event of a reduction in
value a. Court order and action by the
creditor
b. Security,
restoration,
redemption
Swiss Civil Code
234
210
Art. 810
1 In the event of depreciation without fault on the owner's part, the creditor has a right to security or redemption only if the owner is indemnified for the loss.
2
However, the creditor is entitled to take measures to prevent or eliminate the depreciation. He or she shall acquire a lien on the property for his or her costs which does not render the owner personally liable. This lien does not require to be recorded in the land register and takes precedence over all other registered encumbrances.581 3 If the amount of the lien exceeds 1000 francs and the lien is not recorded in the land register within four months of completion of the measures, it may not be cited in opposition to third parties who rely on the land register in good faith.582
Art. 811
If a part of the property worth less than one-twentieth of the secured
debt is disposed of, the creditor may not refuse to release this portion from liability under the lien provided a proportionate repayment of the debt is made or the rest of the property provides him or her with sufficient security.
Art. 812
1 Any waiver by the owner of right to create further charges over the servient property is non-binding.
2
If, after the mortgage right has been created, the immovable property is encumbered with an easement or a real burden without the mortgage creditor's consent, the mortgage right takes precedence over the later encumbrances, which will be deleted if, in the event of enforcement proceedings, their existence is prejudicial to the mortgage creditor.
3
However, the beneficiary of the easement or real burden has a claim for payment of the value of his or her right out of the enforcement proceeds, such claim taking precedence over the beneficiaries of encumbrances subsequently recorded in the land register.
581 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
582 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
2. Depreciation
without owner's
fault
3. Disposal of
minor portions
of the property
V. Further
encumbrances
Swiss Civil Code
235
210
Art. 813
1 A mortgage is confined to the rank indicated in the entry.
2
Mortgage rights may be established in a second or any lower rank provided the amount taking precedence is specified in the entry.
Art. 814
1 If mortgage rights of different rank are created on an immovable property, any deletion does not entitle the beneficiaries of lowerranking mortgage to advance in rank.
2
The owner may create another mortgage in place of one which has been deleted.
3
An agreement providing for mortgage creditors to advance in rank only has in rem effect where it is recorded as a priority notice in the land register.
Art. 815
If a subordinate mortgage right is created and no higher-ranking
mortgage exists, or if the debtor has not yet made use of an existing higher-ranking right to create a mortgage, or if a precedent claim is worth less than the amount recorded in the land register, in the event of foreclosure, the proceeds are distributed among the actual mortgage creditors according to their rank and irrespective of vacant ranks.
Art. 816
1 In the event of default on the part of the debtor, the creditor has the right to payment out of the proceeds of the sale of the property.
2
Any agreement stipulating that the property subject to the mortgage will become the property of the creditor in the event of default on the part of the debtor is invalid.
3
Where several properties are made subject to a mortgage as security for a single claim, foreclosure proceedings must be brought simultaneously against all such properties, while individual properties are sold only if deemed necessary by the debt enforcement office.
Art. 817
1 The proceeds from the sale of the property are distributed among the mortgage creditors according to their rank.
2
Creditors of the same rank are entitled to equal satisfaction.
Art. 818
1 A mortgage right secures the creditor: VI. Rank 1. Effect of rank 2. Ranking
3. Vacant ranks
VII. Foreclosure 1. Mode 2. Distribution of
the proceeds
3. Extent of
security
Swiss Civil Code
236
210
1. for the principal; 2. for the costs of debt enforcement and default interest; 3.583 for three years' accrued annual interest due on the date of the application for foreclosure or the debtor is declared bankrupt, plus the interest due since the last maturity date; in the case of a mortgage certificate only the interest actually due is secured by the mortgage.
2
The interest rate originally agreed must not exceed five per cent to the detriment of subordinate mortgage creditors.
Art. 819
584 1 If a creditor has incurred expenses necessary for the maintenance of the property, in particular by paying insurance premiums owed by the owner, such expenses are secured by a lien over the property. This lien does not require to be recorded in the land register and takes precedence over all other registered encumbrances.
2
If the amount of the lien exceeds 1000 francs and the lien is not recorded in the land register within four months of the compensatory act being carried out, it may not be cited in opposition to third parties who rely on the land register in good faith.
Art. 820
1 If a rural property increases in value due to improvements carried out with the help of the public authorities, the owner may record a lien in the land register as security for his or her share of the costs which takes precedence over all other registered encumbrances on the property.
2
If such land improvement is made without state subsidy, the owner may enter the lien for a maximum of two-thirds of his or her costs.
Art. 821
1 If a land improvement is made without state subsidy, the debt in relation to the charge must be repaid in annual payments of at least five per cent of the registered amount of the lien.
2
The lien is extinguished for the claim and for each annual payment three years after maturity, and any lower-ranking mortgage creditors advance in rank.
583 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
584 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
4. Security for
maintenance
costs
VIII. Lien in the
case of land
improvements 1. Precedence 2. Extinction of
debt and lien
Swiss Civil Code
237
210
Art. 822
1 A payment under insurance policy may be made to the owner of the insured property only with the consent of all the charge creditors.
2
However, it may be made to the owner for the purposes of restoring the property subject to the charge provided adequate security is furnished.
3
In other respects, the cantonal provisions governing fire insurance are reserved.
Art. 823
585 Where the name or place of residence of the creditor is unknown, the
court may, at the request of the debtor or other interested parties, order the necessary measures in cases where the law requires that a creditor take personal action as a matter of urgency.
Chapter Two: The Mortgage Contract
Art. 824
1 A mortgage contract may secure any kind of debt, be it current, future or contingent.
2
The mortgaged property need not be owned by the debtor.
Art. 825
1 A mortgage contract is created in a specific rank even if the secured amount is indeterminate or variable, and it retains such rank notwithstanding any fluctuations in the secured amount.
2
The creditor may request that the land registrar provide him or her with an extract concerning the mortgage contract. Such an extract has only evidential status and does not constitute a negotiable instrument.
3
In lieu of such evidence, a certificate of registration may be appended to the mortgage contract deed.
Art. 826
If the debt is extinguished, the owner of the mortgaged property may
request the creditor to authorise the deletion of the entry from the land register.
585 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
IX. Entitlement
to insurers'
payments
X. Untraceable
creditor
A. Purpose and
nature
B. Establishment
and extinction I. Establishment II. Extinction 1. Right to have entry deleted
Swiss Civil Code
238
210
Art. 827
1 If the property owner is not the debtor of the secured debt, he or she may redeem the mortgage on the same conditions as the debtor may repay the debt.
2
If he or she satisfies the creditor, the claim passes to him or her.
Art. 828
1 Where a property is mortgaged for more than its value in respect of debts for which the acquirer is not personally liable, and providing no debt enforcement proceedings are pending, cantonal law may authorise the acquirer to redeem the mortgage rights either by paying the purchase price to the creditors or, where the property was acquired without payment, the amount at which he or she values the property.
2
He or she must give the creditors six months' notice in writing of his or her intention to redeem the mortgage.
3
The redemption amount is distributed among the creditors according to their rank.
Art. 829
1 Within one month of the acquirer's notification, the creditors are entitled to request that the mortgaged property be sold at public auction provided that they advance the costs, such auction to be announced publicly and held within one month of the date on which it was requested.
2
If a higher price than the one offered is obtained at auction, the mortgage is redeemed at that higher price.
3
The costs of the public auction are borne by the acquirer if a higher price is obtained, or otherwise by the creditor who requested the auction.
Art. 830
Cantonal law may provide that the redemption amount be determined
by an official valuation rather than by sale at public auction.
Art. 831
Where the owner of the mortgaged property is not also the debtor,
notice given by the creditor to terminate his or her claim is binding on the owner only if it is served on both him or her and the debtor.
2. Position of
owner
3. Unilateral
redemption a. Conditions and procedure
b. Public auction
c. Official
valuation
4. Termination
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239
210
Art. 832
1 The alienation of a mortgaged property does not affect liability under the mortgage contract and of the debtor unless otherwise agreed.
2
However, if the new owner has assumed liability for the secured debt, the previous debtor is discharged unless the creditor notifies him or her in writing within one year that he or she intends to retain him or her as debtor.
Art. 833
1 If part of a mortgaged property or one of two or more mortgaged properties belonging to the same owner is alienated or if the mortgaged property is divided, unless otherwise agreed, liability under the mortgage will be reallocated in proportion to the value of the different parts.
2
If the creditor does not wish to accept such reallocation, within one month of its becoming final he or she may request repayment of his or her debt within one year.
3
Where the new owners have assumed liability for the debts secured by their properties, the previous debtor is discharged unless the creditor notifies him or her in writing within one year that he or she intends to retain him or her as debtor.
Art. 834
1 If the new owner assumes the debt, the land registrar notifies the creditor accordingly.
2
The one-year time limit for the creditor's declaration runs as of such notice.
Art. 835
The assignment of a debt secured by a mortgage contract is valid
without entry in the land register.
Art. 836
586 1 Where cantonal law grants the creditor the right to a lien in respect of debts that are directly related to the servient property, the lien is created when it is recorded in the land register.
2
Where statutory liens amounting to over 1000 francs are created under cantonal law without being recorded in the land register and if 586 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
C. Effect I. Ownership and liability 1. Alienation 2. Division
3. Notice of
assumption of
debt
II. Assignment
of a debt
D. Statutory
mortgage right I. Under cantonal law
Swiss Civil Code
240
210
they are not recorded in the land register within four months of the underlying debt becoming due, or at the latest within two years of the debt arising, on expiry of the period allowed for registration they may no longer be cited in opposition to third parties who rely on the land register in good faith.
3
More restrictive regulations under cantonal law are reserved.
Art. 837
587 1 The right to establish a statutory mortgage right applies to: 1. the vendor's claim to the sale price; 2. the claims of co-heirs and other co-owners in undivided shares arising from the division of immovable property which belonged to the community; 3. the claims of tradesmen and building contractors who have supplied labour and materials, or labour alone, for construction or other works, for demolition work, scaffolding work or for securing the construction pit or similar on the property whether the debtor is the owner of the property, tradesman or building contractor, tenant or any other person with rights to the property.
2
If a tenant or other person with rights to the property is liable for debts due to tradesmen or building contractors, the claim is valid only if the property owner has consented to the work being done.
3 The beneficiary may not waive such statutory mortgage rights in advance.
Art. 838
A lien in favour of the vendor, co-heirs or co-owners in undivided
shares must be registered within three months of transfer of ownership.
Art. 839
588 1 A tradesman's or building contractor's lien may be recorded in the land register as of the date of his or her undertaking to perform work.
2
Application for such entry must be made within four months of completion of the work.
587 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
588 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
II. With entry 1. Cases in point 2. Vendor,
co-heirs and
co-owners
3. Tradesmen
and building
contractors a. Registration
Swiss Civil Code
241
210
3
The lien is entered only if the claim has been acknowledged by the owner or confirmed in a court judgment and may not be requested if the owner provides the claimant with adequate security.
4
If the property is indisputably administrative assets and if the owner's liability for the debt is not based on contractual obligations, the owner shall be liable to the tradesmen or building contractor for debts that are acknowledged or determined by a court in accordance with the provisions on a debt subject to a simple surety, provided a written claim for the debt making reference to the statutory surety was made against the owner no later than four months after completion of the work.
5
If there is a dispute as to whether immovable property constitutes administrative assets, the tradesman or building contractor may apply for the provisional recording of the lien in the land register no later than four months after completion of the work.
6
If it is held in a court judgment that the immovable property constitutes administrative assets, the provisional recording of the lien must be deleted. It shall be replaced by the statutory surety provided the requirements of paragraph 4 are met. The deadline is met with the provisional recording of the lien.
Art. 840
If more than one statutory building contractor's lien is recorded in the
land register, such liens confer an equal entitlement to satisfaction from the mortgaged property even if the entries were made on different dates.
Art. 841
1 Where the claims of tradesmen and building contractors are not wholly satisfied by foreclosure, the shortfall must be compensated for by the higher-ranking creditors out of such portion of the proceeds as exceeds the land value, provided it is apparent to such creditors that their liens have encumbered the property to the detriment of the tradesmen and building contractors.
2
If the higher-ranking creditor alienates his or her mortgage security, he or she must compensate the tradesmen and building contractors for any sum of which they are deprived by such alienation.
3
Once an interested party has had the beginning of the work noted in the land register, until the time limit for registration has expired, liens may only be registered in the form of mortgage contracts.
b. Rank
c. Privileged
claim
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242
210
Chapter Three:589 Mortgage Certificates
Art. 842
1 A mortgage certificate gives rise to a personal debt secured by a mortgage.
2
In the absence of an agreement to the contrary, the mortgage certificate, where applicable, co-exists with the debt to be secured that arises from the basic relationship between the creditor and the debtor 3
The debtor may raise the personal objections arising from the basic relationship against the creditor and his or her legal successors where they do not act in good faith.
Art. 843
The mortgage certificate takes the form of either a register mortgage
certificate or a mortgage certificate on paper.
Art. 844
1 The owner of a mortgaged property who is not also the debtor under the mortgage certificate is subject to the provisions governing mortgage contracts.
2
In the case of a mortgage certificate, the owner of the mortgaged property may raise the same objections as the debtor.
Art. 845
The consequences of the sale and the division of the property are governed by the provisions on mortgage contracts.
Art. 846
1 The mortgage certificate debt must neither relate to the basic relationship nor include conditions or considerations in return.
2
The mortgage certificate may include debt-related ancillary agreements on the rate of interest, repayment instalments and discharge as well as other ancillary provisions relating to the mortgage certificate debt. A reference to a separate agreement is permitted.
589 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
A. Mortgage
certificate I. Purpose; Relationship
with the debt
arising from the
basic relationship
II. Form
III. Position of
owner
IV. Sale.
Division
V. Mortgage
certificate debt
and ancillary
agreements 1. In general
Swiss Civil Code
243
210
Art. 847
1 The mortgage certificate may be discharged by the creditor or the debtor at six months notice at the end of any month unless otherwise agreed.
2
Any agreement may not allow the creditor a shorter period of notice than three months, unless the debtor defaults in making the repayments or paying the interest.
Art. 848
For any person relying on the land register in good faith, the details of the mortgage certificate debt and the lien accord with the entry.
Art. 849
1 The debtor may raise only such objections as arise from the entry in the land register or to which he or she is personally entitled with regard to the creditor or to document of title in the case of a mortgage certificate on paper.
2
Agreements including ancillary provisions on the mortgage certificate debt may only be cited in opposition to an acquirer of the mortgage certificate acting in good faith if they are referred to in the land register and on the document of title in the case of a mortgage certificate on paper.
Art. 850
On the issue of a mortgage certificate, a person may be granted a power of attorney. This person must make and receive payments, receive notices, consent to releases from liability under the mortgage and in general safeguard the rights of the creditors, debtor and owner with all due care and impartiality 2 The name of the authorised person must be recorded in the land register and on the document of title.
3
If the power of attorney lapses and the persons involved are unable to agree, the court shall make the necessary arrangements.
Art. 851
1 The debtor must make all payments at the domicile of the creditor unless otherwise agreed.
2
If the creditor's domicile is unknown or has changed to the detriment of the debtor, the latter may discharge his or her obligation by depositing payment with the competent authority at his or her own domicile or at the creditor's former domicile 2. Notice
VI. Protection of
persons acting in
good faith
VII. Objections
by the debtor
VIII. Authorised
person
IX. Place of
payment
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244
210
Art. 852
1 Where the legal relationship changes to the advantage of the debtor, in particular through the repayment of the debt, the debtor may request the creditor to agree to an amendment being recorded in the land register.
2
In the case of a mortgage certificate on paper, the land register shall note the amendment on the document of title.
3
In the absence of such an entry or the note on the document of title, the effect of the change in the legal relationship has no effect on an acquirer of the mortgage certificate acting in good faith.
Art. 853
If the mortgage certificate debt is discharged, the debtor may request the creditor: 1. to agree to transfer the register mortgage certificate into the name of the debtor; or 2. to hand over the document of title to the paper mortgage certificate without cancelling the same.
Art. 854
1 If there is no longer a creditor, or if the creditor waives his or her lien, the debtor has the option of either having the entry deleted or allowing it to remain in the land register.
2
The debtor also has the right to continue to use the mortgage certificate.
Art. 855
A mortgage certificate on paper may not be deleted from the land register before the document of title has been cancelled or declared void by the court.
Art. 856
1 If the creditor under a mortgage certificate has not come forward for ten years and if no demand has been made for interest during that period, the owner of the mortgaged property may ask the court to make a public call for the creditor to come forward within six months 2 If the creditor fails to come forward within this period and if an investigation concludes that there is a high probability that a valid claim no longer exists, the court shall: 1. in the case of a register mortgage certificate, delete the lien from the land register; or X. Changes in
the legal
relationship
XI. Discharge
XII. Extinction 1. In the absence of a creditor
2. Deletion
XIII. Public call
to creditors
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210
2. cancel the mortgage certificate on paper and delete the lien from the land register.
Art. 857
1 A register mortgage certificate is created when it is recorded in the land register.
2
It is recorded in the name of the creditor or of the landowner.
Art. 858
1 The transfer of a register mortgage certificate is achieved by recording the new creditor in the land register based on a written declaration from the previous creditor.
2
Payments by the debtor only have a discharging effect if they are made to the person who at the time of payment is recorded as the creditor in the land register.
Art. 859
1 The pledging of the register mortgage certificate is achieved by recording the creditor of a charge on chattels in the land register based on a written declaration from the creditor recorded in the land register.
2
A distraint order is executed by recording the restriction on power of disposal in the land register.
3
The usufruct is created by its recording in the land register.
Art. 860
1 The creation of a mortgage certificate on paper always requires an entry in the land register and a document of title 2 The bearer or a specific person, in particular the landowner, may be named as the creditor under the paper mortgage certificate.
3
The mortgage certificate shall take effect on registration even if the document of title has not yet been issued.
Art. 861
1 The mortgage certificate on paper is issued by the land register issued.
2
It must be signed by the land registrar in order to be valid. Other requirements as to form shall be imposed by the Federal Council.
3
It may be delivered to the creditor or his or her authorised agent only with the express consent of the debtor and of the owner of the servient property.
B. Register
mortgage
certificate I. Establishment II. Transfer
III. Pledging,
distraint and
usufruct
C. Mortgage
certificate on
paper I. Creation 1. Registration 2. Document of
title
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Art. 862
1 For any person relying on the land register in good faith, the rights stated in the document of title duly issued as a mortgage certificate on paper apply.
2
If the wording of the document of title does not correspond to the entry or if there is no entry, the land register is authoritative.
3
A person who has acquired a document of title in good faith is entitled to damages in accordance with the provisions governing the land register.
Art. 863
1 A claim arising from a mortgage certificate may not be alienated, pledged or otherwise asserted unless the claimant is in possession of the document.
2
This does not apply to the assertion of a claim in cases where the document of title has been cancelled or not yet issued
Art. 864
1 The assignment of a mortgage certificate debt requires the delivery of the document of title to the assignee.
2
If the title is in the names of a person, the title must also be endorsed and the name of the assignee given.
Art. 865
1 Where a document of title has been lost or destroyed without the intention of repaying the debt, the creditor may request the court to cancel the document of title and order the debtor to make payment or that a new document of title be issued for as yet unmatured claims 2 The cancellation is made in accordance with the provisions governing the cancellation of bearer securities but subject to a notice period of six months 3
Likewise, the debtor may request that a lost certificate which has already been redeemed be cancelled.
Art. 866
-874 Repealed II. Protection of
persons acting in
good faith
III. Creditor's
rights 1. Claims
2. Assignment
IV. Cancellation
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210
Chapter Four: Issue of Bonds secured by a Mortgage Right
Art. 875
Registered or bearer bonds may be secured by a mortgage: 1. by issuing a mortgage contract or a mortgage certificate for the entire series and appointing an agent for the creditors and the borrower; 2. by establishing a mortgage right for the entire bond issue in favour of the issuer and establishing a mortgage on that debt in favour of the bond holders.
Art. 876
-883590 Title Twenty-Three: Charges on Chattels Chapter One: Pledges of Chattels and Special Liens
Art. 884
1 Except where otherwise provided by law, chattels may be pledged only by the transfer of possession of the pledged chattel to the pledgee.
2
Any person who in good faith takes a chattel in pledge acquires a general lien over it, provided that third parties do not have rights over the chattel as a result of prior possession, even if the pledger had no authority to alienate it.
3
The general lien is not established as long as the pledger retains exclusive possession of the chattel.
Art. 885
1 A general lien on livestock to secure the claims of lending institutions and co-operatives authorised to carry out such transactions by the competent authority of the canton in which they have their seat may be established without transfer of possession by entry in a public register and notification to the debt enforcement office.
2
The Federal Council regulates the keeping of the register.591 590 Repealed by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
591 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
A. Bond issues
secured by a lien
A. Pledges I. Establishment 1. Possession by pledgee
2. Pledge of
livestock
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210
3
The cantons may levy fees for entries in the register and the associated administration; they determine the register districts and the responsible officials.592
Art. 886
A subordinate pledge is established by notifying the pledgee in writing
and instructing him or her to deliver the pledged chattel to the subordinate pledgee after his or her claim has been satisfied.
Art. 887
The pledgee may only give the pledged chattel in further pledge with
the pledger's consent.
Art. 888
1 The general lien is extinguished once the pledgee no longer possesses the pledged chattel and is unable to demand its return from third parties.
2
The effects of the lien are suspended as long as the pledger has exclusive possession of the pledged chattel with the pledgee's consent.
Art. 889
1 The pledgee must return the pledged chattel to the entitled party where the pledge is extinguished due to payment of the debt or for some other reason.
2
He or she is not obliged to return the pledged chattel, in whole or in part, until his or her claim has been fully satisfied.
Art. 890
1 The pledgee is liable for the depreciation or loss of the pledged chattel, unless he or she shows that he or she is not at fault.
2
If the pledgee has alienated the pledged chattel or given it in further pledge without authority, he or she is liable for any resulting damage.
Art. 891
1 If the debtor is in default the creditor has the right to satisfy his or her claim from the proceeds of the pledge.
592 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
3. Subordinate
pledge
4. Further pledge
by pledgee
II. Extinction 1. Loss of possession
2. Return
3. Liability of
the pledgee
III. Effect 1. Rights of the pledgee
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210
2
The general lien provides the creditor with security for his or her claim, including contractual interest, debt enforcement costs and default interest.
Art. 892
1 The general lien encumbers the pledged chattel including its accessories.
2
Unless otherwise agreed, the pledgee must deliver the natural fruits of the pledged chattel to the owner once they are no longer a constituent part thereof.
3
Fruits which are a constituent part of the pledged chattel at the time of its realisation are included in it.
Art. 893
1 Where there are several pledges on the same chattel, the pledgees are satisfied according to their rank.
2
Rank is determined by the date on which the pledges were established.
Art. 894
Any agreement stipulating that the pledged chattel will become the
property of the pledgee in the event of default on the part of the debtor is invalid.
Art. 895
1 A creditor has the right to retain chattels and securities which have come into his or her possession with the debtor's consent until his or her claim has been satisfied, providing such claim is due and intrinsically connected with the retained objects.
2
Between persons engaged in commerce, an intrinsic connection exists where both the claim and the retained objects relate to their commercial dealings.
3
The creditor has a special lien provided that third parties do not have rights as a result of prior possession, even if the chattel which he or she has received in good faith does not belong to the debtor.
Art. 896
1 No special lien may be asserted over chattels which by their nature are not realisable.
2
Equally, no special lien may be asserted where to do so would be incompatible with an obligation assumed by the creditor or with 2. Scope of the
general lien
3. Rank
4. Default
agreements
B. Special lien I. Requirements II. Exceptions
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210
instructions issued by the debtor prior to or upon transfer of the chattel or with public policy.
Art. 897
1 In the event of the debtor's insolvency, the creditor has a special lien even if his or her claim is not yet due.
2
If the insolvency did not occur or become known to the creditor until after transfer of the chattel, the special lien may be exercised even if incompatible with a prior obligation or with a special instruction issued by the debtor.
Art. 898
1 If the debtor is in default and fails to provide sufficient security, the creditor is entitled to realise the retained object in the same manner as a pledged chattel after notifying the debtor.
2
Where retained registered securities are to be realised, the debt enforcement or bankruptcy official must take the necessary steps on the debtor's behalf.
Chapter Two: Liens on Debts and Other Rights
Art. 899
1 Debts or other rights may be pledged provided they are assignable.
2
Unless otherwise provided, a general lien on debts and other rights is regulated by the provisions governing the pledging of chattels.
Art. 900
1 In order to pledge a debt not evidenced in writing or for which only a borrower's note exists, the pledge agreement must be executed in writing and, where applicable, the borrower's note transferred.
2
The pledgee and the pledger may inform the debtor of the pledge.
3
In order to pledge other rights, a written pledge agreement must be drawn up and any form required for the transfer must be observed.
Art. 901
1 In the case of bearer securities, delivery of the certificate to the pledgee is sufficient to establish the pledge.
2
In the case of other securities, the certificate must be delivered and either endorsed or accompanied by a declaration of assignment.
III. In the event
of insolvency
IV. Effect
A. In general
B. Establishment I. In the case of ordinary claims
II. In the case of
securities
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210
3
The pledging of intermediated securities is governed exclusively by the Intermediated Securities Act of 3 October 2008593.594
Art. 902
1 Where there are documents of title to goods, the goods may be pledged by pledging the documents.
2
Where a special warrant exists in addition to a document of title to goods, pledging the warrant is sufficient to pledge the goods, provided notice of the pledge including the amount of the debt and the maturity date is entered on the document of title.
Art. 903
A subordinate pledge of a debt is valid only if the prior ranking pledgee is notified in writing of the subordinate pledge by the creditor or by the subordinate pledgee.
Art. 904
1 Unless otherwise agreed, a pledge of interest-bearing debts or other debts conferring periodic subsidiary benefits, such as dividends, is limited to the current debt and the creditor is not entitled to payments which have already fallen due.
2
However, where such subsidiary rights are evidenced by separate documents, unless otherwise agreed, they are also covered by pledged to the extent that the pledge has been validly established.
Art. 905
1 Pledged shares are represented at general meetings of shareholders by the shareholder rather than the pledgee.
2
Pledged capital contributions to a limited liability company are represented in the members' general meeting by the member rather than the pledgee.596 593 SR
957.1
594 Inserted by Annex No 1 of the Intermediated Securities Act of 3 Oct. 2008, in force since 1 Jan. 2010 (AS 2009 3577; BBl 2006 9315).
595 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
596 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
III. In the case of documents of
title to goods
IV. Subordinate
pledge
C. Effect I. Extent of security
II. Representation of pledged
shares and
capital contributions to limited
liability companies595
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Art. 906
1 If diligent administration so requires, the creditor may give notice to terminate the pledged claim and collect the debt and the pledgee is entitled to request that such procedures be carried out.
2
Once notified of the pledge, the debtor may make payment to either the creditor or the pledgee, but only with the other party's consent.
3
Where no such consent is forthcoming, he or she must deposit the amount due.
Chapter Three: Pawnbroking
Art. 907
1 Any person wishing to operate as a pawnbroker requires a licence from the cantonal government.
2
Cantonal law may provide that such licences are granted only to cantonal or communal bodies and charitable organisations.
3
The cantons may levy fees from pawnbrokers.
Art. 908
1 A licences is granted to private pawnbrokers for a specific period only, but may be renewed.
2
A licence may be revoked at any time if the pawnbroker fails to comply with the provisions applicable to his or her business.
Art. 909
A chattel is pawned by delivering it to the pawnbroker against receipt.
Art. 910
1 If the pawned chattel is not redeemed by the redemption deadline, the pawnbroker may sell it at public auction after making a prior call for redemption.
2
The pawnbroker has no claim against the pledger.
Art. 911
1 If the auction proceeds exceed the pawned amount, the pledger is entitled to the surplus.
2
Several claims against the same pledger may be treated as a single claim for the purpose of calculating the surplus.
III. Administration and payment
A. Pawnbrokers I. Licensing II. Duration of
licence
B. Pawning I. Establishment II. Effect 1. Sale of pawned chattel
2. Right to
surplus
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210
3
The claim to the surplus prescribes five years after the sale of the pawned chattel.
Art. 912
1 Provided it has not yet been sold, the pledger may redeem the pawned chattel against return of the receipt.
2
If the pledger is unable to present the receipt, he or she is entitled to redeem the pawned chattel after the redemption deadline provided he or she establishes his or her entitlement.
3
As of six months after the redemption deadline, the pledger also has such right even where the pawnbroker has expressly reserved the right to release the pawned chattel only against return of the receipt.
Art. 913
1 On redemption the pawnbroker is entitled to charge interest for the full current month.
2
If the pawnbroker has expressly reserved the right to return the pawned chattel to any bearer of the pawn receipt, he or she may do so as long as he or she does not know and could not reasonably be expected to know that the bearer acquired the receipt unlawfully.
Art. 914
Commercial purchases with right of repurchase are deemed equivalent
to pawnbroking.
Art. 915
1 Cantonal law may issue further regulations governing pawnbroking.
2
…597
Chapter Four: … Art. 916-918598 597 Repealed by Section II 21 of the FA of 15 Dec. 1989 on the Approval of Cantonal Decrees by the Confederation, with effect from 1 Feb. 1991 (AS 1991 362; BBl 1988 II 1333).
598 Repealed by Art. 52 No. 2 of the Mortgage Bond Act of 25 June 1930, with effect from 1 Feb. 1931 (BS 2 747; BBl 1925 III 527).
III. Redemption
of the pawned
chattel 1. Right of redemption
2. Pawnbroker's
rights
C. Purchase with
right of repurchase
D. Rules
governing
pawnbroking
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210
Division Three: Possession and the Land Register Title Twenty-Four: Possession
Art. 919
1 Effective control over a thing constitutes possession of it.
2
In the case of easements and real burdens, effective exercise of the right constitutes possession.
Art. 920
1 Where the possessor transfers an object to a third party in order to confer on him or her a limited right in rem or a personal right, both are considered to have possession.
2
The owner of the object has direct possession and any other possessor has derivative possession.
Art. 921
Possession is not lost if the exercise of effective control is impeded or
interrupted by occurrences of a temporary nature.
Art. 922
1 Possession is transferred by the delivery of the object itself or of the means by which the recipient may gain effective control of it.
2
Transfer is complete once the transferee is able to exercise effective control over the object with the consent of the prior possessor.
Art. 923
Transfer among persons who are absent is completed on delivery of
the object to the transferee or his or her representative.
Art. 924
1 Possession of an object may be acquired without physical delivery if a third party or the transferor himself retains possession of it in terms of a special legal relationship.
2
The transfer is not binding on the third party who retains possession of the object until he or she has been notified thereof by the transferor.
3
The third party is entitled to refuse delivery to the acquirer for the same reasons for which he or she could have refused delivery to the transferor.
A. Definition
and types I. Definition II. Direct and
derivative
possession
III. Temporary
interruption
B. Transfer I. Among parties present in person
II. Among absent
persons
III. Without
physical transfer
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210
Art. 925
1 Delivery of documents of title to goods which have been consigned to a carrier or a warehouse is equivalent to the delivery of the goods themselves.
2
However, where a bona fide acquirer of the document of title to goods is in conflict with a bona fide acquirer of the goods, the latter has priority.
Art. 926
1 A possessor has the right to use force in self-defence against any unlawful interference.
2
If he or she has been dispossessed of an object by force or by clandestine means, he or she has the right to recover it immediately by expelling the trespasser from the property or, in the case of a chattel, by taking it from a person caught in the act and pursued immediately.
3
In doing so, he or she must abstain from all force not justified by the circumstances.
Art. 927
1 A person who wrongfully dispossesses another of an object is obliged to return it, even if he or she claims a better right to it.
2
If the defendant may immediately show a better right entitling him or her to reclaim the object from the claimant, he or she may refuse to return it.
3
The claim is for restitution of the object plus damages.
Art. 928
1 A possessor disturbed by trespass may bring an action against the trespasser even if the latter claims to be in the right.
2
The claim is for cessation of trespass, prohibition of further trespass and damages.
Art. 929
1 An action for restitution or trespass lies only provided the possessor sues for restitution of the object or for cessation of trespass immediately upon becoming aware of the interference in his or her rights and the identity of the trespasser.
2
The action prescribes one year after the date of the trespass or dispossession even if the claimant did not become aware of the interference in his or her rights and the identity of the trespasser until a later date.
IV. In the case of
documents of
title to goods
C. Legal
remedies I. Protection of possession 1. Defence against interference
2. Action for
restitution
3. Action for
trespass
4. Admissibility
and prescription
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210
Art. 930
1 The possessor of a chattel is presumed to be its owner.
2
Each previous possessor is presumed to have been the owner of the chattel while it was in his or her possession.
Art. 931
1 The possessor of a chattel who does not purport to be its owner may invoke the presumption that the person from whom he or she received it in good faith is the owner.
2
Where a person possessing a chattel invokes a limited right in rem or a personal right, the existence of such a right is presumed, but such presumption cannot be invoked against the person from whom the possessor received the chattel.
Art. 932
The possessor of a chattel may invoke the presumption of his or her
better right in any action brought against him, subject to the provisions governing wrongful dispossession or trespass.
Art. 933
A person who takes possession of a chattel in good faith in order to
become its owner or to acquire a limited right in rem is protected therein even if the chattel was entrusted to the transferor without any authority to effect the transfer.
Art. 934
1 A possessor whose chattel has been stolen or lost, or who has otherwise been dispossessed of it against his or her will, may reclaim it from any possessor within a period of five years. Article 722 is reserved.599 1bis
The right to recover an object of cultural heritage as defined by Article 2 paragraph 1 of the Cultural Property Transfer Act of 20 June 2003600, possession of which has been lost against the owner's will, prescribes one year after the owner becomes aware of where and by whom such object is being held, but at the latest 30 years after the loss.601 599 Amended by No I of the FA of 4 Oct. 2002 (Article of Basic Principles: Animals), in force since 1 April 2003 (AS 2003 463; BBl 2002 4164 5086).
600 SR
444.1
601 Inserted by Art. 32 No 1 of the Federal Act on Transfer of Cultural Heritage of 20 June 2003, in force since 1 June 2005 (AS 2005 1869; BBl 2008 535).
II. Remedies 1. Presumption of ownership
2. Presumption
of indirect
ownership
3. Action against
the possessor
4. Power of
disposal and
right of restitution a. Entrusted
objects
b. Stolen or lost
chattels
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210
2
If a chattel has been sold at public auction, or on the market, or by a merchant dealing in goods of the same kind, it may be reclaimed from the first and any subsequent bona fide purchaser only against reimbursement of the price paid.
3
In other respects, restitution is subject to the provisions governing possession in good faith.
Art. 935
Cash and bearer securities cannot be reclaimed from a recipient in
good faith even if the possessor was dispossessed of them against his or her will.
Art. 936
1 A person who has not acquired a chattel in good faith may be required by the previous possessor to return it at any time.
2
However, if the previous possessor likewise did not acquire the chattel in good faith, he or she cannot reclaim the chattel from any subsequent possessor.
Art. 937
1 In respect of land recorded in the land register, only the person registered may invoke presumption of title and bring an action for recovery of possession.
2
However, a person who exercises effective control over the land may bring an action for wrongful dispossession or trespass.
Art. 938
1 A person possessing an object in good faith is not liable to its rightful owner for the consequences of using it in accordance with his or her presumed right.
2
He or she is not obliged to replace what has been lost or damaged.
Art. 939
1 Where the rightful owner requests restitution of an object, the possessor in good faith may request indemnification for any necessary or useful expenditure incurred and may refuse to surrender the object until such indemnification is forthcoming.
2
He or she has no right to indemnification of other expenditure, but where none is proffered, he or she may remove anything for which he or she has incurred cost, provided this may be done without damaging the property.
c. Cash and
bearer securities
d. Bad faith
5. Presumption
of title to land
III. Liability 1. Possessor in good faith a. Use
b. Indemnity
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210
3
Any fruits collected by a possessor are set off against his or her claim for indemnification.
Art. 940
1 A person possessing an object in bad faith must return it to the rightful owner and compensate him or her for any damage resulting from such wrongful possession, including any fruits he or she collected or failed to collect.
2
He or she may claim indemnification only of such expenditure as the rightful owner would also have had to incur.
3
As long as a possessor does not know to whom he or she must surrender the object, he or she is only liable for damage for which he or she is at fault.
Art. 941
A possessor fulfilling the requirements of adverse possession may
count his or her predecessor's period of possession as part of his or her own provided his or her predecessor's possession also qualified as adverse possession.
Titel Twenty-Five: The Land Register
Art. 942
1 The land register is kept as a record of property rights.
2
It consists of the main register, the plans, property directories, supporting documents and property descriptions appended to the main register, and the journal.
3
The land register may be kept on paper or electronically.602 4
Where the land register is kept electronically, legal effect attaches to such data as are properly stored in the system and legible in letters and figures or displayed on plans by means of the technical capabilities of the devices and equipment used by the land register.603 602 Inserted by Annex 1 of the FA of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
603 Inserted by Annex 1 of the FA of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
2. Possession in
bad faith
IV. Adverse
possession
A. Organisation I. Constituent parts 1. In general
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210
Art. 943
604 1 The following are recorded in the land register as immovable property:
1. parcels of land and the buildings thereon; 2. distinct and permanent rights recorded in the land register; 3. mines; 4. co-ownership shares in immovable property.
2
The Federal Council issues detailed regulations governing the prerequisites for and method of registration of distinct and permanent rights, mines and co-ownership shares in immovable property.
Art. 944
1 Immovable property which is not privately owned and is in public use will be recorded in the land register only if rights in rem attaching to such property are to be registered or if cantonal law provides for its registration.
2
If registered immovable property is transformed into property that is not subject to registration, it is deleted from the land register.
3
…605
Art. 945
1 Each item of immovable property has its own folio and number in the main register.
2
The procedure to be followed in the event of the division or consolidation of immovable property is determined by Federal Council ordinance.
Art. 946
1 The following data is entered in separate sections on each folio: 1. ownership; 2. the easements and real burdens established in favour of or encumbering the property;
3. the liens with which it is encumbered.
604 Amended by No I of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
605 Repealed by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immoveable Property Law) and the Code of Obligations (Sale of Immoveable Property), with effect from 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
2. Registered
data a. Object
b. Exceptions
3. Registers a. Main Register b. Folio
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210
2
Accessories may be noted on the folio at the owner's request and, once noted, may be deleted only with the consent of all such interested parties as are evident from the land register.
Art. 947
1 Two or more parcels of land may be entered on one folio with the owner's consent, regardless of whether they are contiguous.
2
The entries on such folio are valid for all the land in question with the exception of easements.
3
The owner may at any time request that entries for individual parcels of land be removed from a joint folio, all rights being reserved.
Art. 948
1 Applications for entry in the land register are recorded without delay in the journal in chronological order indicating the applicant and the object of his or her request.
2
Supporting documents are duly classified and archived.
3
In cantons where the land registrar is authorised to draw up public deeds, the supporting documents may be replaced by an official record whose entries constitute public deeds.
Art. 949
1 The Federal Council prescribes the land register forms, issues the necessary regulations and regulates at its discretion the keeping of auxiliary registers.
2
The cantons may establish special provisions governing the registration of rights in rem on land under cantonal law, but such provisions become valid only when approved by the Confederation.
a607 1 A canton wishing to keep the land register electronically must obtain the approval of the Federal Department of Justice and Police.
2
The Federal Council regulates: 1. the authorisation procedure; 606 Amended by No 1 of the FA of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
607 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land; AS 1993 1404; BBl 1988 III 953). Amended by No 1 of the FA of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
c. Joint folio
d. Journal,
supporting
documents
4. Implementing
ordinances a. In general606 b. For electronic
registers
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210
2. the scope and technical details of the electronic land register, particularly the procedure by which entries become effective; 3. whether and on what conditions electronic communication with the land register is permissible; 4. whether and on what conditions the public will be given access to unrestricted data recorded in the main register;
5. data access, the logging of retrieval requests and conditions for the withdrawal of user entitlements in the event of abuse; 6. data
protection;
7. long-term data security and data archiving.
3
The Federal Department of Justice and Police and the Federal Department of Defence, Civil Protection and Sport define data models and standard interfaces for the land register and official land surveys.
Art. 950
608 1 The entry for and description of each parcel of land in the register are based on the official cadastral survey, and in particular on a plan drawn for the land register.
2
The Geoinformation Act of 5 October 2007609 regulates the qualitative and technical requirements of the official cadastral survey.
Art. 951
1 For land register purposes the cantons are divided into districts.
2
Immovable property is entered in the register for the district in which it is situated.
Art. 952
1 Immovable property that lies in more than one district is entered in the register of each district, with reference being made to the register of the other districts.
2
Entries which establish rights are to be made in the register of the district in which the largest part of the property is situated.
3
Entries in this land register will be notified by the registrar to the other land registries.
608 Amended by Annex No II of the FA of 5 Oct. 2007 on Geoinformation, in force since 1 July 2008 (AS 2008 2793; BBl 2006 7817).
609 SR
510.62
5. Official
cadastral survey
II. Keeping the
register 1. Districts a. Allocation to districts
b. Land straddling more than
one district
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210
Art. 953
1 The cantons are responsible for setting up the land registries, the demarcation of the districts, the appointment and remuneration of officials and supervision arrangements.
2
The regulations issued by the cantons, save for those concerning the appointment and remuneration of officials, are subject to approval by the Confederation.610
Art. 954
1 The cantons may levy fees for entry in the land register and for the necessary surveys.
2
No charge may be made for entries relating to land improvements or to land exchanges for the purpose of agricultural consolidation.
Art. 955
1 The cantons are liable for any losses arising from the maintenance of the land register.
2
They have a right of recourse against the land register officials and employees and against the immediate supervisory bodies if they are at fault.
3
They may require the officials and employees to provide security.
Art. 956
612 1 The management of the land registries is subject to the administrative supervision of the cantons.
2
The Confederation exercises the supervisory control.
a613 1 A ruling issued by the land registry may be contested before an authority designated by the canton; a ruling includes the unlawful refusal to carry out or delay in carrying out an official act.
610 Amended by No II 21 of the FA of 15 Dec. 1989 on the Approval of Cantonal Decrees by the Confederation, in force since 1 Feb. 1991 (AS 1991 362; BBl 1988 II 1333).
611 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
612 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
613 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
2. Land registries
3. Fees
III. Liability611
IV. Administrative supervision
V. Legal
protection 1. Right of appeal
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2
The following persons are entitled to appeal: 1. any person who suffers particular prejudice due to a ruling issued by the land registry and who has a legitimate interest in its revocation or amendment;
2. the cantonal administrative supervisory authority it has a right of appeal under cantonal law; 3. the federal supervisory authority.
3
No appeal may be brought against an entry, amendment or deletion of rights in rem or priority notices executed in the main register.
b614 1 The period within which an appeal to the cantonal appellate authorities must be filed amounts to 30 days.
2
Where the land registry refuses to carry out or delays in carrying out a specific official act, however, an appeal may be filed at any time.
Art. 957
615
Art. 958
The following rights to immovable property are recorded in the land
register:
1. ownership; 2. easements and real burdens; 3. liens.
Art. 959
1 Personal rights may be entered under priority notice in the land register where such notices are expressly provided for by law, as is the case for a right of pre-emption, right of repurchase, right of purchase, usufructuary lease and tenancy.
2
By virtue of being entered under priority notice, they may be invoked against any rights subsequently acquired.
614 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
615 Repealed by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
2. Appeal
proceedings
B. Registration I. Land register entries 1. Ownership
and rights in rem
2. Priority
notices a. Personal rights
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Art. 960
1 Restrictions on powers of disposal may be entered under priority notice for individual parcels of land if they result from: 1. an official order made to secure disputed or enforceable claims;
2.616 a distraint order; 3.617 a case in which entry under priority notice is envisaged by law, such as a remainderman's expectancy.
2
On entry under priority notice, the restrictions on powers of disposal become effective against all subsequently acquired rights.
Art. 961
1 Provisional entries may be made in the land register: 1. in order to secure asserted rights in rem; 2. in the cases where the law permits the applicant to complete his or her application.
2
They are made either with the consent of all interested parties or by court order and the right, provided it is later confirmed, becomes effective in rem as of the date of the provisional entry.
3
The court rules on the application and, provided the applicant satisfies the court of his or her entitlement, approves the provisional entry, precisely specifying its nature, duration and effect and, where necessary, setting a time limit within which the applicant must bring an action to assert his or her rights.618
a619 A priority notice in the land register does not preclude the registration
of a right with a subordinate rank.
616 Amended by Annex No. 4 of the FA of 16 Dec. 1994, in force since 1 Jan. 1997 (AS 1995 1227; BBl 1991 III 1).
617 Amended by No I 4 pf the Federal Act of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
618 Amended by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
619 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
b. Restrictions
on powers of
disposal
c. Provisional
entries
d. Entry of
subordinate
rights
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Art. 962
620 1 The state authority or another public body must arrange for a public law restriction on ownership ordered in respect of a specific property that imposes a permanent restriction on use or power of disposal or duty relating to the property on the owner to be noted in the land register.
2
Where the restriction on ownership ceases to apply, the state authority or the other public body must arrange for the note to be deleted from the land register. If the state authority or the other public body fails to act, the land register may delete the note ex officio.
3
The Federal Council shall stipulate the areas of cantonal law in which restrictions on ownership must be noted in the land register.
The cantons may provide for additional notes. They shall draw up a list of circumstances requiring a note, which must be passed on to the Confederation.
a621 The following may be noted in the land register: 1. the statutory representative at his or her request or at the request of the competent authority;
2. the estate administrator, the representative of the heirs, the official liquidator and the executors at their request or at the request of the heirs or the competent authority;
3. the representative of an owner, charge creditor or easement beneficiary whose whereabouts are unknown at his or her request or at the request of the court; 4. the representative of a legal entity or other rights holder in the absence of the required management body at his or her request or at the request of the court; 5. the administrator of a condominium association at his or her request or at the request of the condominium owners meeting or of the court.
Art. 963
1 Entries in the land register are based on a written declaration by the owner of the immovable property to which the entry relates.
620 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
621 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
II. Noting 1. Restrictions under public law
2. Of representatives
III. Requirements for entry 1. Applications a. For an entry
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2
No declaration by the owner is required where the acquirer may rely on a provision of the law, a final court judgment or a document having effect equal to that of a court judgment.
3
The officials authorised to execute public deeds may be instructed by the cantons to notify the transactions certified by such deeds for entry in the land register.
Art. 964
1 Amendment or deletion of an entry in the land register requires an declaration in writing by the person whose entitlement results from the entry.
2
Such application may be made by signing the journal.
Art. 965
1 A disposition in the land register, such as an entry, amendment or deletion, may be made only on the basis of documents establishing the right to make such disposition and its legal basis.
2
Authority to request a disposition is established by proof that the applicant is the person entitled by virtue of the entry in the land register or has been duly vested with a power of attorney by said person.
3
The legal basis for the requested disposition is established by proof that the formal requirements have been observed.
Art. 966
1 Where the documentation required for a disposition in the land register is not forthcoming, the application is rejected.
2
However, provided the legal basis is established and the application lacks only certain documents, a provisional entry may be made with the owner's consent or by court order.
Art. 967
1 The entries in the main register are made in the order in which applications are received or in which certifications and declarations are signed by the land registrar.
2
Interested parties will be provided on request with an extract of the entry.
3
The formal requirements for entries, deletions and extracts are regulated by the Federal Council.
b. For a deletion
2. Authority a. Valid proof of authority
b. Completion of
application
IV. Manner of
entry 1. In general
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210
Art. 968
Easements are entered and deleted on the folios of both the dominant
and servient properties.
Art. 969
1 The registrar must notify interested parties of all dispositions in the land register made without their knowledge; he or she shall, in particular, notify any acquisition of ownership by a third party to parties with rights of pre-emption which are entered under priority notice in the land register or to parties with rights which exist by law and are evident from the land register.622 2 The time limit for challenging such dispositions begins on receipt of such notification.
Art. 970
623 1 Any person showing a legitimate interest is entitled to consult the land register or to be provided with an extract.
2
A person is entitled to obtain the following information from the main register without showing a legitimate interest: 1. the name and description of the immovable property; 2. the name and identity of the owner; 3. the form of ownership and the date of acquisition.
3
The Federal Council shall specify other particulars of easements, real burdens and notices in the register which may be made public without the need to show a legitimate interest. It shall pay due regard to the protection of personal privacy.
4
An objection based on ignorance of a land register entry is inadmissible.
a624 1 The cantons may provide that all acquisitions of immovable property be published.
622 Amended by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
623 Amended by Annex No 1 of the FA of 19 Dec 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
624 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land; AS 1993 1404; BBl 1988 III 953). Amended by Annex No 1 of the FA of 19 Dec. 2003 on Electronic Signatures, in force since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).
2. For easements
V. Duty to notify
C. Public nature
of land register I. Information and right of
consultation
II. Publication
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210
2
They may not publish the consideration involved in a division of estate, an advance against a person's share of an inheritance, a marital agreement or a liquidation of marital property.
Art. 971
1 Where the establishment of a right in rem is subject to entry in the land register, such right has effect in rem only if it has been entered.
2
Within the limits of such entry, the scope of a right may be established by supporting documents or in some other manner.
Art. 972
1 Rights in rem are established and assigned their rank and date by virtue of being entered in the main register.
2
The entry has retroactive effect as of its recording in the journal, provided the supporting documents required by law are included with the application or, in the case of provisional entries, are submitted in good time.
3
In cantons where the registrar draws up public deeds by means of an entry in an official record of title, such a record constitutes entry in the journal.
Art. 973
1 Any person who, relying in good faith on an entry in the land register, has acquired property or any other right in rem in reliance thereon, is protected in such acquisition.
2
This rule does not apply to boundaries of land in areas designated by the cantons as being in permanent danger of ground displacement.625
Art. 974
1 If the entry of a right in rem is unwarranted, a third party who is or ought to be aware thereof may not rely on the entry.
2
An entry is unwarranted if it is without legal basis or was made on the basis of an invalid transaction.
3
A person whose rights in rem are infringed by such an entry may invoke its defectiveness directly against the third party acting in bad faith.
625 Inserted by No I of the FA of 4 Oct. 1991 on the Partial Revision of the Civil Code (Immovable Property Law) and of the Code of Obligations (Purchase of Land), in force since 1 Jan. 1994 (AS 1993 1404; BBl 1988 III 953).
D. Effect I. Need for an entry
II. Effect of
entry 1. In general 2. In relation to
third parties
acting in good
faith
3. In relation to
third parties
acting in bad
faith
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210
a626 1 If a property is divided, the easements, priority notices and notes for each divided part must be revised.
2
The owner of the property being divided must advise the land registry which entries to delete and which to transfer to the divided parts. If this is not done, the application must be rejected.
3
Where an entry according to the supporting documents or the circumstances does not relate to a divided part, it must be deleted. The procedure is governed by the regulations on the deletion of an entry.
b627 1 Two or more parcels of land belonging to one owner may only be consolidated if no mortgage rights or real burdens have to be transferred from the individual parcels to the consolidated property or if the creditor consents.
2
If easements, priority notices or notes encumbering the property must be recorded, they may be consolidated only if the beneficiaries consent or if their rights are not prejudiced due to the nature of the encumbrance.
3
If easements, priority notices or notes benefiting the property real estate must be recorded, they may only be consolidated if the owner of the servient property consents or if the encumbrance is not increased by consolidation.
4
The provisions on revision on the division of property apply by analogy.
Art. 975
1 Where an entry of a right in rem is unwarranted or a correct entry has been deleted or modified in an unwarranted manner, any person whose rights in rem are thereby infringed may bring an action for deletion or amendment of the entry.
2
Rights in rem acquired in good faith by third parties relying on the entry and claims for damages are reserved.
626 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
627 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
628 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
E. Deletion and
amendment of
entries I. Revision 1. On the division of
property
2. In the case of
the consolidation
of parcels of land
II. Unwarranted
entries628
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210
Art. 976
629 The land register may delete an entry ex officio if the entry: 1. is limited in time and has lost its legal significance as it has expired;
2. relates to a non-assignable or non-heritable right of a deceased person;
3. cannot affect the property due to the local situation; 4. relates to a property that no longer exists.
a630 1 If an entry in all probability has no legal importance, in particular because according to the supporting documents or the circumstances it does not relate to the property, then any person encumbered may request its deletion.
2
If the land registry regards the request as justified, it shall inform the beneficiary that it will delete the entry unless he or she files an objection with land registry within 30 days.
b631 1 If the beneficiary files an objection, the land registry shall reassess the request for deletion at the request of the encumbered person.
2
If the land registry concludes that the request should be granted despite the objection, it shall notify the beneficiary that it will delete the entry from the main register unless the beneficiary brings a court action to declare that the entry is of legal significance.
c632 1 If conditions have changed in fact or law in a specific area and as a result a large number of easements, priority notices or notes have completely or largely lapsed or if the situation can no longer be de629 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other
amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
630 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
631 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
632 Inserted by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
III. Simplified
deletion 1. Clearly insignificant
entries
2. Other entries a. In general b. On objection
3. Public
revision
procedure
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210
termined, the authority designated by the canton may order a revision in this area.
2
This order must be noted in the corresponding land register folios.
3
The cantons shall regulate the details and the procedure. They may further simplify the revision procedure or issue regulations that deviate from federal law.
Art. 977
1 Unless the interested parties consent in writing, the land registrar may correct the register only in accordance with a court order.
2
Instead of correcting an unwarranted entry, the registrar may delete it and make a new one.
3
The land registrar may correct typographical errors of his or her own accord in accordance with regulations to be issued by the Federal Council.
Final Title: Commencement and Implementing Provisions634 Chapter One: Application of Former and New Law635
1 When this Code comes into force, the legal effects of circumstances which occurred previously remain subject to those provisions of federal or cantonal law which were applicable when the circumstances occurred.
2
Accordingly, the legally binding nature and consequences of acts which took place before the commencement hereof remain subject to the law which was applicable at the time.
3
However, circumstances occurring after the commencement hereof are subject to the new law, unless this Code provides otherwise.
633 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
634 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
635 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
IV. Corrections633
A. General
provisions I. General rule of non-retroactive
effect
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210
1 The provisions of this Code specifically enacted in the interests of public policy and good morals apply when it comes into force to all circumstances, unless this Code provides otherwise.
2
Accordingly, provisions of the previous law which under the new law are deemed to contravene public policy and good morals cease to apply when the new law comes into force.
When this Code comes into force, legal relationships whose content is
defined by law irrespective of the will of the parties concerned are subject to the new law, even if previously such relationships were valid.
The legal effects of circumstances which occurred while the previous
law was still in force and which enjoy no protection under the new law are subject to the latter once it has come into force.
1 Capacity to act shall be assessed in all cases in accordance with the provisions of this Code.
2
However, any person who has the capacity to act under the previous law when this Code comes into force but who would not have the capacity to act under the new law will also be recognised as having the capacity to act when this Code comes into force.
1 The declaration of presumed death becomes subject to the new law when this Code comes into force.
2
When this Code comes into force, declarations of death or absence under the previous law have the same effects as a declaration of presumed death under the new law, but the consequences that have occurred under the previous law prior to this Code coming into force, such as succession or dissolution of marriage, remain valid.
3 Proceedings ongoing when the new law comes into force shall be restarted in accordance with the provisions of this Code, taking account of the time that has elapsed, or, if requested by the parties, concluded in accordance with the previous procedure, respecting the previous deadlines.
II. Retroactive
effect 1. Public policy and good morals
2. Relationships
defined by law
3. Non-vested
rights
B. Law of
persons I. Capacity to act II. Presumed
death
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210
a636 1 The Federal Council regulates the transition from the former procedure for keeping the civil register to the electronic civil register.
2
The Confederation assumes the capital investment costs up to an amount of 5 million francs.
b637 1 Associations of persons and institutions or foundations that had acquired legal personality under the previous law, retain their personality under the new law even where they would not acquire legal personality under the new law.
2
Existing legal entities that require to be entered in the public register in accordance with this Code must register within five years of the commencement of the new law even if no provision was made for registration under the previous law and are no longer recognised as legal entities on expiry of this time limit.
2bis
Religious foundations and family foundation that are not entered in the commercial register when the Amendment of 12 December 2014 (Art. 52 para. 2) comes into force continue to be recognised as legal entities. They must be entered in the commercial register within five years of the Amendment coming into force. The Federal Council shall take the special circumstances of religious foundations into account when determining the requirements for entry in the commercial register.639 3 The status of the legal personality of all legal entities is determined by the new law as soon as this Code comes into force.
c640 The provisions of the Amendment of 16 December 2005641 relating to
accounting and auditors apply from first financial year that begins on or after the commencement of this Code.
636 Inserted by No 1 of the FA of 5 Oct. 2001 (Electronic civil register), in force since 1 July 2004 (AS 2004 2911; BBl 2001 1639).
637 Originally
Art.
6a. Previously Art. 7.
638 Amended by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
639 Inserted by No I 1 of the FA of 12 Dec. 2014 on the Implementation of the 2012 Revision of the Recommendations of the Financial Action Task Force, in force since 1 Jan. 2016 (AS 2015 1389; BBl 2014 605).
640 Inserted by Annex No 1 of the FA of 16 Dec. 2005 (Law on limited liability companies and modifications to the law on companies limited by shares, cooperatives, the commercial register and company names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969).
641 AS
2007 4791; BBl 2002 3148, 2004 3969 IIa. Central civil register database
III. Legal entities 1. In general638 2. Accounting
and auditors
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210
642 1 The new law applies to marriage as soon as the Federal Act of 26 June 1998643 has come into force.
2
Marriages subject to grounds for annulment under the previous law may, once the new law has come into force, only be annulled under the new law. However the period that has lapsed before this date will be taken into account in determining time limits.
a644 1 Divorce proceedings are governed by the new law as soon as the Federal Act of 26 June 1998645 has come into force.
2
Divorces that had taken full legal effect under the previous law remain valid; the new provisions on enforcement apply to periodic maintenance payments or lump sum settlement that are fixed as an alternative to maintenance or as a maintenance contribution.
3
Any amendment of the divorce decree is carried out in accordance with the previous law with the exception of the provisions on children and procedural matters.
b646 1 The new law applies to divorce proceedings that are pending on the commencement of the Federal Act of 26 June 1998647 and which must be judged by a cantonal authority.
2
New legal requests that are required due to the change in the applicable law are permitted; uncontested parts of the judgment remain binding, unless they are materially so closely connected with the requests that remain to be judged that it makes sense to reassess the entire case 3
The Federal Supreme Court decides in accordance with the previous law in cases where the contested judgment was issued before the commencement of the Federal Act of 26 June 1998; this also applies if the case is referred back to the cantonal authority.
642 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
643 AS
1999 1118; BBl 1996 I 1 644 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
645 AS
1999 1118; BBl 1996 I 1 646 Inserted by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
647 AS
1999 1118; BBl 1996 I 1 C. Family law I. Marriage Ibis. Divorce 1. Principle 2. Pending
divorce proceedings
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210
c648 For divorce proceedings that are pending on commencement of the
Amendment of 19 December 2003649 and must be judged by a cantonal authority, the period of separation under the new law applies.
d650 1 The new law on occupational pensions on divorce applies as soon as the amendment of 19 June 2015 comes into force.
2
The new law applies to divorce cases pending before a cantonal court at the time when the amendment of 19 June 2015 comes into force.
3
When the contested decision was made before the amendment of 19 June 2015 came into force, the Federal Supreme Court shall decide under previous law; this also applies when a case is referred back to the cantonal court.
e651 1 If on divorce under the previous law the court, when deciding on the equitable division of pensions, has awarded compensation to the entitled spouse in the form of a pension that terminates on the death of the liable or the entitled spouse, the entitled spouse may, within one year of the amendment of 19 June 2015 coming into force, demand that he or she be granted a life-long pension in accordance with Article 124a instead, should the liable spouse draw an old-age pension or an invalidity pension after the commencement of the statutory pension age. 2 In the case of decisions made abroad, jurisdiction is determined by Article 64 of the Federal Act of 18 December 1987652 on International Private Law.
3
Any pension payments already made under previous law are considered part of the pension awarded.
648 Inserted by No I of the FA of 19 Dec. 2003 (Period of Separation under Divorce Law), in force since 1 June 2004 (AS 2004 2161; BBl 2003 3927 5825).
649 AS
2004 2161
650 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
651 Inserted by No I of the FA of 19 June 2015 (Equitable Division of Pensions on Divorce), in force since 1 Jan. 2017 (AS 2016 2313; BBl 2013 4887).
652 SR
291
3. Period of
separation for
pending divorce
proceedings
4. Occupational
pension
5. Conversion of
existing pensions
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210
653 For the effects of the marriage in general, the new law applies as soon
as the Federal Act of 5 October 1984 has come into force.
a654 A spouse who changed his or her name on marriage before the amendment to this Code of 30 September 2011 came into force may declare to the civil registrar at any time that he or she wishes to use his or her name before marriage again.
b655 A Swiss woman who married under the previous law may within one
year of the new law coming into force declare to the competent authority of her former canton of origin that she wishes to retain the citizenship that she held as a single woman.
656 The legal effects on marital property of marriages contracted before 1 January 1912 are governed by the provisions of the Civil Code on the application of the previous and new law that came into force on that day.
a658 1 The new law applies to marriages that exist when the Federal Act of 5 October 1984 comes into force, unless otherwise provided.
2
The legal effects on marital property of marriages that were dissolved before the Federal Act of 5 October 1984 came into force are governed by the previous law.
653 Amended by No I 4 of the FA of 26 June 1998, in force since 1 Jan. 2000 (AS 1999 1118; BBl 1996 I 1).
654 Inserted by No I 2 of the FA of 5 Oct. 1984 (AS 1986 122 153 Art. 1; BBl 1979 II 1191). Amended by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
655 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
656 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
657 For the application of the transitional law, see also the previous provisions of the Sixth Title at the end of the Civil Code.
658 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
659 See the provisions applicable until 31 Dec. 1987 at the end of this text.
Iter. Effects the
marriage in
general 1. Principle 2. Surname
3. Citizenship
II. Marital
property law
applicable to
marriages
contracted before
1 January
1912657
IIbis
. Marital
property law
applicable to
marriages
contracted after
1 January
1912659 1. In general
Swiss Civil Code
277
210
b660 1 Spouses who have hitherto been subject to a union of property regime are now subject to the regulations on participation in acquired property in relation to each other and to third parties.
2
The assets of each spouse become his or her own property or acquisitions in accordance with the regulations on participation in acquired property; separate property in terms of a marital agreement becomes personal assets.
3
The wife reclaims the property she brought into the marriage that became her husband's property or makes a claim for compensation.
c661 In the event of the husband's bankruptcy and the distraint of his assets, the previous provisions on the wife's right to compensation in respect of property that she has brought into the marriage and which is no longer available continue to apply for ten years after the new law comes into force.
d662 1 After the new law comes into force, the division of marital property between the spouses is governed for the entire duration of the previous and the new statutory marital property regime by the regulations on participation in acquired property, unless the spouses have completed the division of marital property in accordance with the provisions on union of property at the time when the new law comes into force.
2
Before the new law comes into force, either spouse may give written notice to the other that the current marital property regime of union of property must be dissolved in accordance with the previous law.
3
If the marital property regime is dissolved because an action filed before the new law comes into force is upheld, the division of marital property is governed by the previous law.
e663 1 Spouses subject to the statutory marital property regime of union of property who have not changed this marital property regime by mari660 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988
(AS 1986 122 153 Art. 1; BBl 1979 II 1191).
661 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
662 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
663 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
2. Change from a
union of
property to
participation in
acquired
property a. Change to the bodies of assets
b. Preferential
right
c. Division of
marital property
under the new
law
3. Retention of
the union of
property regime
Swiss Civil Code
278
210
tal agreement may by one year at the latest after the new law comes into force elect to retain the union of property regime by filing a joint written declaration with the marital property register office at their domicile; the marital property register office shall maintain a register of such declarations that anyone may inspect.
2
The marital property regime may only be cited in opposition to a third party if that third party is or should be aware of it.
3
The new regulations on the separation of property apply in future to the spouses' separate property.
f664 In the case of a separation of property established by operation of the law or by court order, the spouses are subject to the new provisions on the separation of property.
665 1 If the spouses have entered into a marital agreement in accordance with the Civil Code, this marital agreement continues to apply and their entire marital property regime continues to be governed by the previous law, subject to the reservation of the provisions of this Title on separate property, legal effect on third parties and the contractual separation of property.
2
The new regulations on the separation of property apply in future to the spouses' separate property.
3
Agreements on participation in a surplus or deficit in the case of a union of property regime must not adversely affect the statutory inheritance entitlements of children who are not the common issue of the spouses or those of the issue of such children.
a666 1 The marital property regime may only be cited in opposition to a third party if that third party is or should be aware of it.
2
If the marital property agreement has no legal effect in relation to third parties, the provisions on participation in acquired property apply from now on in relation to such parties.
664 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
665 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
666 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
4. Retention of
separation of
property by
operation of law
or by court order
5. Marital
agreement a. In general b. Legal effect in
relation to third
parties
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279
210
b667 1 Spouses subject to a union of property regime who have changed this marital property regime by marital agreement may by one year at the latest after the new law comes into force elect to make their legal rights subject to the new statutory marital property regime of participation in acquired property by filing of a joint written declaration with marital property register office at their domicile.
2
In this event, contractual participation in the surplus shall in future apply to the total amount of the surplus of both spouses, unless a marital property agreement provides otherwise.
c668 If the spouses agreed to a separation of property under the previous law, they are subject in future to the new provisions on the separation of property.
d669 Marital agreements concluded before the Federal Act of 5 October 1984 comes into force but which are intended to take effect only under the new law do not require the approval of the child protection authority.
e670 1 After the Federal Act of 5 October 1984 comes into force, no further entries will be made in the register of marital property.
2
The right to inspect the register continues to apply.
671 If a separation of assets under the law of marital property in connection with the new law coming into force causes serious difficulties for a spouse who is liable to pay debts or the replace property that is due, he or she may request additional time to pay; the debt must be secured if this is justified by the circumstances.
667 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
668 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 AS 1986 153 Art. 1; BBl 1979 II 1191).
669 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
670 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
671 Amended by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
c. Application of
the new law
d. Contractual
separation of
property
according to
previous law
e. Marital
agreements
concluded with a
view to the new
law coming into
force
f. Register of
marital property
6. Repayment of
debts in the case
of separation of
assets under the
law of marital
property
Swiss Civil Code
280
210
a672 If the marital property rights change when the Federal Act of 5 October 1984 comes into force, the provisions on the protection the creditors in the event of a change in the marital property regime govern liability.
673 1 As soon as this Code comes into force, the establishment and effects of the parent-child relationship are governed by the new law; the surname and the citizenship acquired under previous law are retained.
2
Children who are subject to parental authority by operation of the new law but who are under guardianship when the new law comes into force must be placed under parental authority no later than one year after that date unless the contrary was ordered under the provisions on the withdrawal of parental of authority.
3
A transfer or withdrawal of parental authority officially ordered under the previous law remains effective after the new law comes into force.
4
When the Amendment of 21 June 2013 comes into force, if parental responsibility is assigned to only one parent, the other parent may within one year of this Amendment coming into force request the competent authority to order joint parental responsibility. Article 298b applies mutatis mutandis.674 5 A parent whose parental responsibility is revoked on divorce may file a request with the competent court only if the divorce was decreed less than five years before the Amendment of 21 June 2013 comes into force.675
a676 1 An adoption pronounced before the new provisions of the Federal Act of 30 June 1972 on the Amendment of the Swiss Civil Code come into force continues to be governed by the law that came into force on 672 Inserted by No I 2 of the FA of 5 Oct. 1984, in force since 1 Jan. 1988 (AS 1986 122 153 Art. 1; BBl 1979 II 1191).
673 Amended by No I 2 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
674 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
675 Inserted by No I of the FA of 21 June 2013 (Parental Responsibility), in force since 1 July 2014 (AS 2014 357; BBl 2011 9077).
676 Inserted by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
7. Protection of
creditors
III. The parentchild relationship
in general
IIIbis. Adoption 1. Continuation of the previous
law
Swiss Civil Code
281
210
1 January 1912677; consents validly given in accordance with this law remain effective in every case.
2
Persons who are not yet 20 years old when the Federal Act of 7 October 1994 comes into force may still be adopted in accordance with the provisions on minority after attaining majority provided the application is filed within two years of the Federal Act coming into force and of their 20th birthday.678
b679 The new law applies to adoption procedures pending at the time the
amendment of 17 June 2016comes into force.
c680 The provisions of the amendment of 17 June 2016 on the confidentiality of adoption information, on information about the biological parents and their direct descendants and on the possibility of arranging contact between the biological parents and the child also apply to adoptions which are granted prior to the amendment coming into force or which are pending at the time it comes into force.
cbis681
d682 The contesting of a declaration of legitimacy made under the previous law is governed by analogy by the provisions of the new laws on the contesting of recognition following the parents' marriage.
677 Art. 465 Civil Code in the version of 1 Jan. 1912: 1 An adoptive child and his or her issue have the same rights of succession in respect of the adoptive parents as the issue of their marriage.
2 Adoptive parents and their blood relatives have no rights of succession in respect of an adoptive child.
678 Inserted by No I of the FA of 7 Oct. 1994, in force since 1 Jan. 1996 (AS 1995 1126; BBl 1993 I 1169).
679 Inserted by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
680 Inserted by No I 3 of the FA of 30 June 1972, in force since 1 April 1973 (AS 1972 2819; BBl 1971 I 1200).
681 Inserted by Annex No. 2 of the FA of 22 June 2001 on the Hague Convention on Adoption and on Measures to Protect Children in International Adoption Cases (AS 2002 3988; BBl 1999 5795). Repealed by No I of the FA of 17 June 2016 (Adoption), with effect from 1 Jan. 2018 (AS 2017 3699; BBl 2015 877).
682 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
2. Pending
proceedings
3. Application of
the new law
IIIter. Contesting
a declaration of
legitimacy
Swiss Civil Code
282
210
683 1 Actions pending when the new law comes into force are judged in accordance with the new law.
2
The effects until the new law comes into force are determined by the previous law.
a684 1 If a pecuniary obligation on the father's part is established by court decision or by contract before the new law comes into force, and if the child has not yet reached the age of ten when the new law comes into force, the child may within two years bring an action under the provisions of the new law to have the parent-child relationship declared.
2
If the Defendant proves that he or she is not the father or is less likely to be the father than another person, the right to claim future maintenance lapses.
b685 Any person who attains majority due to the Federal Act of 7 October 1994 coming into force may in any case file an action within one year to declare or challenge the parent-child relationship.
c686 The child may apply for the revision of any maintenance payments set in an approved maintenance agreement or in a decision before the amendment of 20 March 2015 came into force. If they were set at the same time as maintenance payments to one of the parents, payments shall only be revised if there has been a substantial change in circumstances.
cbis 687 1 The new legislation applies to proceedings that are pending at the time of the amendment of 20 March 2015 coming into force.
683 Amended by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
684 Inserted by No I 1 of the FA of 25 June 1976, in force since 1 Jan. 1978 (AS 1977 237; BBl 1974 II 1).
685 Inserted by No I of the FA of 7 Oct. 1994, in force since 1 Jan. 1996 (AS 1995 1126; BBl 1993 I 1169).
686 Inserted by No I of the FA of 7 Oct. 1994 (AS 1995 1126; BBl 1993 I 1169). Amended by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan. 2017 (AS 2015 4299; BBl 2014 529).
687 Inserted by No I of the FA of 20 March 2015 (Child Maintenance), in force since 1 Jan.
2017 (AS 2015 4299; BBl 2014 529).
IV. Paternity
actions 1. Pending
actions
2. New actions
IVbis. Time limit
for declaring or
challenging the
parent-child
relationship
IVter. Maintenance contribu-
tions 1. Existing
maintenance
titles
2. Pending
proceedings
Swiss Civil Code
283
210
2
When the contested decision was made before the amendment of 20 March 2015 came into force, the Federal Supreme Court shall decide under the previous law; this also applies when a case is referred back to the cantonal court.
d688 1 If after the amendment to this Code of 30 September 2011 comes into force the parents on the basis of a declaration under Article 8a of this Title no longer have the same surname, they may declare within one year of the new law coming into force that their children will take the surname before marriage of the parent who made the declaration.
2
If the parental responsibility of a child of parents who are not married to each other is transferred to both parents or the father alone before the amendment to this Code of 30 September 2011 comes into force, the declaration provided for in Article 270a paragraphs 2 and 3 may be made within one year of the new law coming into force.
3
In accordance with Article 270b, this shall be subject to the child's consent.
689 1 The new law governs adult protection as soon as the Amendment of 19 December 2008690 comes into force.
2
Persons who have been made wards of court under the previous law shall be made subject to a general deputyship under the new law. The adult protection authority shall adapt to the new law as soon as possible. Unless the authority has decided otherwise in the case of extended parental responsibility, parents are exempt from the obligation to prepare an inventory, report and file accounts regularly and to obtain consent for certain transactions.
3
Other measures ordered under the previous law cease to apply three years after the Amendment of 19 December 2008 comes into force unless the adult protection authority transforms them into a measure under the new law.
4
Where a doctor based on Article 397b paragraph 2 in its version of 1 January 1981691 ordered the care-related detention of a mentally ill person, this measure shall continue to apply. The relevant institution shall notify the adult protection authority six months at the latest after the new law comes into force whether it regarded the requirements for 688 Inserted by No I of the FA of 30 Sept. 2011 (Name and Citizenship), in force since 1 Jan. 2013 (AS 2012 2569; BBl 2009 7573 7581).
689 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
690 AS
2011 725
691 AS
1980 31
IVquater. Name of
the child
V. Adult
protection 1. Existing measures
Swiss Civil Code
284
210
hospitalisation to be met. The adult protection authority shall carry out the required enquiries in accordance with the provisions on regular review and if applicable confirm the hospitalisation decision.
a692 1 Pending proceedings shall be continued by the new competent authority after the Amendment of 19 December 2008693 comes into force.
2
The new procedural law applies.
3
The authority shall decide whether and to what extent the previous proceedings require to be amended.
1 The succession rights and the related and inseparable effects on marital property under cantonal law of the death of a father, a mother or a spouse are determined, provided the deceased dies before this Code comes into force, by the previous law.
2
The foregoing applies both to heirs and to succession.
1 The making or revocation of a testamentary disposition carried out before this Code comes into force, if done by a person subsequently deceased who had testamentary capacity under the law that applied at the time, may not be contested on the grounds that the deceased died following the commencement of the new law and would not have had testamentary capacity under its provisions.
2
A testamentary disposition may not be contested due to a formal defect if it complies with the provisions on form that applied when it was made or at the time of death.
3
The contesting of a disposition on the grounds that the testator exceeded his or her testamentary freedom or due to the nature of the disposition is governed in the case of all testamentary dispositions by the provisions of the new law if the deceased died after the commencement of this Code.
692 Inserted by No II of the FA of 6 Oct. 1978 (AS 1980 31; BBl 1977 III 1). Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
693 AS
2011 725
2. Pending
proceedings
D. Succession
law I. Heirs and
succession
II. Testamentary
dispositions
E. Property law I. Rights in rem in general
Swiss Civil Code
285
210
1
Rights in rem existing when this Code comes into force continue to be recognised under the new law subject to the reservation of the regulations on the land register.
2
However, the scope of rights of ownership and restricted rights in rem is subject to the new law after this Code comes into force unless the Code provides otherwise.
3
Rights that can no longer be created under the new law remain subject to the previous law.
1 Rights to create a right in rem that were established before this Code comes into force are recognised as valid provided they correspond to the form required by the former or the new law.
2
The ordinance on maintaining the land register determines what documentary proof is required for the registration of such rights.
3
The scope of a right in rem established before this Code comes into force by a legal transaction remains recognised under the new law, provided it is compatible with the same.
1 Adverse possession is governed by the new law after this Code comes into force.
2
If however adverse possession recognised under the new law has begun under the previous law, the time that elapsed before this Code comes into force is taken into account in the calculating the period of adverse possession.
694 1 Existing rights of ownership in relation to trees on another person's land continue to be recognised under cantonal law.
2
The cantons shall have the power to limit or revoke these conditions.
bis 695 Condominium governed by the former cantonal law is subject to the new provisions of this Code even if the storeys or parts of storeys are not divided into self-contained dwellings or business units.
694 Amended by No IV of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
695 Inserted by No IV of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
II. Right to entry
in the land
register
III. Adverse
possession
IV. Special
rights of
ownership 1. Trees on another person's
land
2. Condominium a. Original
Swiss Civil Code
286
210
ter 696 1 The cantons may also make condominium recorded in the land register in forms that accord with the law that came into force on 1 January 1912 subject to the new regulations on condominium.
2
The new law becomes effective when the corresponding amendment is made to the entries in the land register.
quater 697 In order to make the converted condominium subject to the new regulations and to register existing condominium, the cantons may order the correction of the land registers and issue special procedural regulations for this purpose.
1 The easements created before this Code comes into force remain valid following the introduction of the land register even if not registered, but until registered may not be enforced against third parties acting in good faith.
2
Obligations ancillary to easements that were established before the amendment of 11 December 2009698 came into force and which are based solely on land register supporting documents may continue to be cited in opposition to third parties who rely on the land register in good faith.699
1 Documents of title existing when this Code comes into force remain in force without having to be adapted to the new law.
2
The cantons have the right to require new versions of existing documents of title to be drawn up on the basis of the new law within specific time limits.
1 After this Code comes into force, new mortgage rights may only be created in the forms recognised herein.
696 Inserted by No IV of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
697 Inserted by No IV of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
698 AS
2011 4637
699 Inserted by No I 2 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
b. Converted
c. Correction of
the land registers
V. Easements
VI. Mortgage
rights 1. Recognition of the existing
document of title
2. Creation of
liens
Swiss Civil Code
287
210
2
Until the introduction of the land register, the previous cantonal legal forms for their creation remain valid.
1 The repayment and modification the title, release from liability under a lien and suchlike are subject to the new provisions following the commencement of the new law.
2
However, until the introduction of the land register, the forms are governed by cantonal law.
1 In the case of all mortgage rights, the extent of liability under the lien is determined by the new law.
2
However, if by virtue of a special agreement the creditor has validly received certain objects with the property pledged, the lien continues to apply to these objects even if they could not be pledged under the new law.
1 The rights and obligations of the creditor and of the debtor in relation to the contractual effect of liens existing when this Code comes into force are governed by the previous law.
2
In relation to effects that arise by operation of the law which cannot be modified contractually, the new law also applies to existing liens.
3
If the lien applies to two or more parcels of land, liability under the lien continues to be governed by the previous law.
The rights of the lien creditor during the existing legal relationship,
such as rights to security, and the rights of the debtor are governed by the new law in relation to all liens from the time at which this Code comes into force.
For liens existing when this Code comes into force, the termination of
the secured debts and the transfer the document of title are governed by the previous law, subject to the reservation of the mandatory provisions of the new law.
3. Repayment of
securities
4. Extent of
liability under
the lien
5. Rights and
obligations from
the mortgage a. In general b. Rights to
security
c. Termination,
transfer
6. Ranking
Swiss Civil Code
288
210
1
Until the introduction of the land register, the ranking of liens is governed by the previous law.
2
Following the introduction of the land register, the ranking of creditors is governed by the land register law contained in this Code.
1 In relation to a fixed ranking position or the right of a creditor to claim a vacant position or an advancement in ranking, the new law applies on the introduction of the land register and in every case from five years after this Code comes into force, subject to the reservation of creditors' existing special claims.
2
The cantons may enact further transitional provisions.700
and 32701
1 The cantonal implementing legislation may stipulate that in general or in a specific legal relationship a form of mortgage under the previous law shall be regarded as equivalent to a form of mortgage under the new law.
2
If this occurs, the provisions of this Code also apply to such cantonal liens from the date on which the Code comes into force.
3
…702
a703 1 Land charge certificates and mortgage certificates issued in series remain recorded in the land register.
2
They remain governed by the provisions of the previous law.
3
Cantonal law may provide for the conversion of land charge certificates created under federal law or earlier law into forms of lien under the current law. Conversion may also involve the introduction of
700 Amended by No II 21 of the FA of 15 Dec. 1989 on the Approval of Cantonal Legislation by the Confederation, in force since 1 Feb. 1991 (AS 1991 362; BBl 1988 II 1333).
701 Repealed by No I 2 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), with effect from 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
702 Repealed by No II 21 of the FA of 15 Dec. 1989 on the Approval of Cantonal Legislation by the Confederation (AS 1991 362; BBl 1988 II 1333).
703 Inserted by No I 2 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
7. Ranking
positions
8. …
9. Equal status of
previous forms
of lien with those
under the new
law
10. Continued
application of
previous law to
existing forms of
lien
Swiss Civil Code
289
210
personal liability for the owner of the mortgaged property for minor sums.
b704 The landowner and the mortgage certificate creditors may jointly
request in writing that a mortgage certificate on paper recorded before the amendment of 11 December 2009705 comes into force be converted into a register mortgage certificate.
1 From the date on which the Code comes into force, charges on chattels may only be created in the forms provided for herein.
2
Where a charge on chattels has been created in another form before this time, it is extinguished after a period of six months which begins to run if the debt is due for payment from the date on which the new law comes into force and in other cases from the date on which it becomes due for payment or when termination is permitted.
1 The effects of the charge on chattels, the rights and obligations of the pledgee, of the pledger and of the pledge debtor are governed from the date on which this Code comes into force by the new law, even if the charge was created before that date.
2
An agreement stipulating that the pledged chattel will become the property of the pledgee in the event of default on the part of the debtor that is concluded before this Code comes into force ceases to be valid from that date.
1 A special lien under this Code also extends to objects that were subject to the power of disposal of the creditor before this Code comes into force.
2
It may also be exercised by the creditors in respect of claims that originated before this date.
3
The effect of special liens originating at an earlier date is subject to the provisions of this Code.
704 Inserted by No I 2 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
705 AS
2011 4637
11. Conversion
the form of the
mortgage
certificate
VII. Charges on
chattels 1. Provisions on form
2. Effect
VIII. Special lien
Swiss Civil Code
290
210
When this Code comes into force, possession becomes subject to the
new law.
1 After consulting the cantons, the Federal Council shall draw up a plan for the introduction of the land register. It may delegate this responsibility to the competent department or office.706 2 …707
708
1 As a general rule, the surveying should precede the establishment of the land register.
2
With consent of the Confederation, however, the land register may be established beforehand if adequate descriptions of the properties are available.
1 …709
2
The surveying and the introduction of the land register may be carried out successively for the individual districts of a canton.
710
1 On the introduction of the land register, rights in rem that already exist shall be recorded in the register.
706 Amended by Annex No II of the FA of 5 Oct. 2007 on Geoinformation, in force since 1 July 2008 (AS 2008 2793; BBl 2006 7817).
707 Repealed by Annex No II of the FA of 5 Oct. 2007 on Geoinformation, with effect from 1 July 2008 (AS 2008 2793; BBl 2006 7817).
708 Repealed by Annex No II of the FA of 5 Oct. 2007 on Geoinformation, with effect from 1 July 2008 (AS 2008 2793; BBl 2006 7817) 709 Repealed by Annex No II of the FA of 5 October 2007 on Geoinformation, with effect from 1 July 2008 (AS 2008 2793; BBl 2006 7817).
710 Repealed by Annex No II of the FA of 5 October 2007 on Geoinformation, with effect from 1 July 2008 (AS 2008 2793; BBl 2006 7817).
IX. Possession
X. Land register 1. Establishment of the land
register
2. Official
cadastral survey a. … b. Relation to the
land register
c. Time schedule
3. Registration of
rights in rem a. Procedure
Swiss Civil Code
291
210
2
For this purpose, an announcement must be made to the public requesting them to give notice of and register these rights.
3
Rights in rem registered under the previous law in public books shall, provided they may be created under the new law, be entered ex officio in the land register.
1 Rights in rem under the previous law that are not registered remain valid but may not be cited in opposition to third parties who rely in good faith on the land register.
2
The Confederation or the cantons may however enact legislation to have all rights in rem that are not recorded in the land register declared invalid after a specific date subject to prior notice.
3
Unregistered public law real burdens and statutory liens under cantonal law created before the amendment of 11 December 2009711 comes into force may for a period of ten years from the date on which the amendment comes into force be cited in opposition to third parties who rely on the land register in good faith.712
713 1 Rights in rem that may no longer be established under the land register law such as the ownership of trees on another person's land, liens on usufructs and suchlike are not recorded in the land register but must be noted in an appropriate manner.
2
If such rights have lapsed for whatever reason, they may not be reestablished.
1 The introduction of the land register in accordance with the provisions of this Code may be postponed by the cantons with the authorisation of the Federal Council provided the cantonal provisions on forms of notice, with or without amendments appear to be sufficient to guarantee the effects that the new law requires of the land register.
2
The forms of notice under cantonal law that are intended to guarantee the effects required by the new law must be precisely specified.
711 AS
2011 4637
712 Inserted by No I 2 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
713 Amended by No IV of the FA of 19 Dec. 1963, in force since 1 Jan. 1965 (AS 1964 993; BBl 1962 II 1461).
b. Consequences
of nonregistration
4. Abolished
rights
5. Postponement
in the introduction of the land
register
Swiss Civil Code
292
210
The property law under this Code in general comes into force even if
the land registers have not been established.
1 When the property law comes into force and before the introduction of the land register, the cantons may designate the procedures, such those for drawing up documents or registration in the registers for land, liens and servitudes, that will immediately have the effect of being recorded in the land register.
2
Even without or before the introduction of the land register, it may be provided that these procedures have the same effect as being recorded in the land register in the case of the creation, transfer, modification and extinction of rights in rem.
3
However, in the event that the land register itself is not introduced or another equivalent institution established, these procedures do not have the same effect as being recorded in the land register in relation to third parties relying thereon in good faith.
1 Where a prescriptive period of five or more years is introduced, the part of a prescriptive period that has elapsed before this Code comes into force is taken into account, whereby however at least two years must elapse from this date in order to complete the prescriptive period.
2
Shorter periods established by this Code for prescription or the expiry of rights begin to run only when this Code comes into force.
3
Otherwise, prescription is governed from that date by the provisions of the new law.
Contracts concluded before this Code comes into force remain valid
even if their form is not in accordance with the provisions of the new law.
Chapter Two: Introductory and Transitional Provisions
Art. 51
On commencement of the Civil Code, cantonal civil law provisions
are repealed unless federal law provides otherwise.
6. Introduction
of the property
law before the
land register
7. Effect of
cantonal forms
F. Prescription
G. Forms of
contract
A. Repeal of
cantonal civil
law
Swiss Civil Code
293
210
1 The cantons shall enact the provisions required to supplement the Civil Code, including in particular those governing the competent authorities714 and the establishment of civil registries, guardianship authorities and land registries.
2
The cantons shall enact any such supplementary provisions as are required to implement the Civil Code and may do so provisionally in the form of ordinances.715 3 Cantonal provisions on register law require federal approval.716 4
Notice of cantonal provisions on other matters must be given to the Federal Office of Justice.717
1 Where a canton has failed to enact the necessary provisions in time, the Federal Council shall provisionally enact substitute ordinances and notify the Federal Assembly.
2
Where a canton refrains from exercising its powers in respect of matters for which supplementary legislation is not indispensable, the provisions of the Civil Code remain applicable.
1 Where the Civil Code makes reference to a competent authority, the cantons shall designate such authority, be it existing or yet to be created.
2
Where the Civil Code does not make express reference to a court or an administrative authority, the cantons may designate either as the competent authority.
3
Unless the Civil Procedure Code of 19 December 2008718 applies, the cantons regulate proceedings.719 714 Presently the Adult protection authority (see Art. 440).
715 Amended by No II 21 of the FA of 15 Dec. 1989 on Approval of Cantonal Decrees by the Confederation, in force since 1 Feb. 1991 (AS 1991 362; BBl 1988 II 1333).
716 Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
717 Inserted by No II 21 of the FA of 15 Dec. 1989 on Approval of Cantonal Decrees by the Confederation, in force since 1 Feb. 1991 (AS 1991 362; BBl 1988 II 1333). Amended by No I 2 of the FA of 19 Dec. 2008 (Adult Protection Law, Law of Persons and Law of Children), in force since 1 Jan. 2013 (AS 2011 725; BBl 2006 7001).
718 SR
272
719 Amended by Annex 1 No II 3 of the Civil Procedure Code of 19 Dec. 2008, in force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
B. Supplementary cantonal
provisions I. Rights and duties of the
cantons
II. Substitute
ordinances
C. Designation
of competent
authorities
Swiss Civil Code
294
210
1 The cantons shall regulate the manner in which public deeds are drawn up on their territory.
2
They enact provisions for the drawing up of public deeds in foreign languages.
a721 1 The cantons may authorise the authenticating officials to make electronic copies of the public deeds that they issue.
2
They may also authorise the authenticating officials to certify electronically that the electronic copies that they create correspond to the original documents on paper and that the signatures are genuine.
3
The authenticating official must use a qualified electronic signature based on a qualified certificate from a recognised provider of certification services in accordance with the Federal Act of 18 March 2016722 on Electronic Signatures.723 4 The Federal Council shall issue implementing provisions that guarantee the interoperability of computer systems and the integrity, authenticity and security of the data.
724 Until such time as federal law regulates the allocation of water rights, the following provision applies: Rights to public waters may be recorded in the land register as distinct and permanent rights, provided they have been granted for at least 30 years or indefinitely and are not allocated to a dominant property in the form of an easement.
725
721 Inserted by No I 2 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
722 SR
943.03
723 Amended by Annex No II 3 of the FA of 18 March 2016 on Electronic Signatures, in force since 1 Jan. 2017 (AS 2016 4651; BBl 2014 1001).
724 See current Art. 59 of the FA of 22 Dec. 1916 on Exploitation of Water Resources (SR 721.80).
725 Repealed by Art. 53 para. 1 item b of the FA of 8 Nov. 1934 on Banks and Savings Banks (AS 51 117; BS 10 337; BBl 1934 I 171).
D. Public deeds I. In general720 II. Electronic
copies and
legalisations
E. Allocation of
water rights
F.-H. …
Swiss Civil Code
295
210
726 When this Code comes into force, the Federal Act of 11 April 1889727 on Debt enforcement and Bankruptcy is amended as follows: …728
729 1 The Federal Act of 25 June 1891730 on the Civil Law Status of Immigrants and Temporary Residents remains in force in respect of the legal status of Swiss nationals abroad and of foreigners in Switzerland and insofar as different laws apply in the cantons.
2
…731
3
The following provisions are inserted in the Federal Act of 25 June 1891: Art. 7a-7i …
732 1 When this Code comes into force, any provisions of federal civil law which contradict it are repealed.
2
In particular, the following are repealed: the Federal Act of 24 December 1874733 on the Determination and Documentation of Civil Status and Marriage; the Federal Act of 22 June 1881734 on Personal Capacity to Act; the Federal Act of 14 June 1881735 on the Code of Obligations.
3
The special acts concerning the railways, steamships, the post, telegraph and telephone services, the seizure and compulsory liquidation of railways, the laws relating to factory employment and liability arising from the operation of factories and other enterprises, and all 726 Last four articles renumbered owing to revocation of the original Art. 58 and 59, in accordance with No I of the Code of Obligations transitional provisions, in force since 1 Jan. 1912 (SR 220).
727 SR 281.1 728 For text, see the federal act referred to. For the wording of Art. 132bis, 141 para. 3 and 258 para. 4, see AS 24 233 Final Title Art. 60.
729 Last four articles renumbered owing to revocation of the original Art. 58 and 59, in accordance with No I of the Code of Obligations transitional provisions, in force since 1 Jan. 1912 (SR 220).
730 [CCFL 2 737; AS 1972 2819 II 1, 1977 237 II 1, 1986 122 II 1. AS 1988 1776 Annex No I para. a]. See current IPLA of 18 Dec. 1987 (SR 291).
731 Repealed by No I 2 of the FA of 5 Oct. 1984 (AS 1986 122; BBl 1979 II 1191).
732 Amended by No I of the Code of Obligations transitional provisions, in force since 1 Jan. 1912 (AS 27 317; BBl 1905 II 1, 1909 III 725; 1911 I 845).
733 [AS 1 506] 734 [AS 5 556] 735 [AS 5 635, 11 490; CCFL 2 784 Art. 103 para. 1] J. Debt enforcement and
bankruptcy
K. Application
of Swiss and
foreign law
L. Repeal of
federal civil law
Swiss Civil Code
296
210
federal laws on matters governed by the Code of Obligations which have been enacted to supplement the Federal Act of 14 June 1881 on the Code of Obligations, remain in force.
736 1 This Code comes into force on 1 January 1912.
2
Subject to the Federal Assembly's approval, the Federal Council is authorised to declare individual provisions effective at an earlier date.
736 Last four articles renumbered owing to revocation of the original Art. 58 and 59, in accordance with No I of the Code of Obligations transitional provisions, in force since 1 Jan. 1912 (AS 27 317; BBl 1905 II 1, 1909 III 725; 1911 I 845).
M. Final
Provision
Swiss Civil Code
297
210
Text of the Previous Provisions737 of Title Six Title Six: Marital Property Law Table of Contents Introduction
A. Application of the law Art. 1
B. Scope and limits of legal relationships I. Acting in good faith Art. 2
II. Good faith
Art. 3
III. Judicial discretion Art. 4
C. Federal law and cantonal law I. Cantonal civil law and local custom Art. 5
II. Cantonal public law Art. 6
D. General provisions of the Code of Obligations Art. 7
E. Rules of evidence I. Burden of proof
Art. 8
II. Proof by public document Art. 9
Art.
10
Part One: Law of Persons Title One: Natural Persons Chapter One: Legal Personality A. Personality in general I. Legal capacity
Art. 11
II. Capacity to act 1. Nature
Art. 12
2. Requirements a. In general Art. 13
b. Majority
Art. 14
c. …
Art. 15
d. Capacity of judgement Art. 16
III. Incapacity
1. In general
Art. 17
737 BS 2 3. These provisions apply as transitional law insofar as provided by Art. 9a ff. Final Title (Revision of Marital Law of 5 Oct. 1984). The provisions have not been translated into English
Swiss Civil Code
298
210
2. Lack of capacity of judgement Art. 18
3. Persons capable of judgement but lacking the capacity to act.
a. Principle
Art. 19
b. Consent of the legal representative Art. 19a
c. Absence of consent Art. 19b
4. Strictly personal rights Art. 19c
IIIbis. Restriction of the capacity to act Art. 19d
IV. Kinship by blood and by marriage 1. Blood kinship
Art. 20
2. Kinship by marriage Art. 21
V. Place of origin and domicile 1. Origin
Art. 22
2. Domicile a. Definition Art. 23
b. Change of domicile, temporary residence Art. 24
c. Domicile of minors Art. 25
d. Persons in institutions Art. 26
B. Protection of legal personality I. Against excessive restriction Art. 27
II. Against infringements 1. Principle
Art. 28
2. Actions a. In general Art. 28a
b. Violence, threats or harassment Art. 28b
3. …
Art. 28c-28f 4. Right of reply a. Principle Art. 28g
b. Form and content Art. 28h
c. Procedure
Art. 28i
d. Publication
Art. 28k
e. Recourse to the courts Art. 28l
III. Right to use one's name 1. Protection of one's name Art. 29
2. Change of name a. General Art. 30
b. On the death of a spouse Art. 30a
C. Beginning and end of personality rights
Swiss Civil Code
299
210
I. Birth and death
Art. 31
II. Proof
1. Burden of proof
Art. 32
2. Evidence a. In general Art. 33
b. Presumption of death Art. 34
III. Declaration of presumed death 1. In general
Art. 35
2. Procedure
Art. 36
3. Failure of application Art. 37
4. Effect
Art. 38
Chapter Two: Registration of Civil Status A. Registers
I. In general
Art. 39
II. Duty to notify
Art. 40
III. Proof of undisputed information Art. 41
IV. Rectification
1. By court order
Art. 42
2. By the register authorities Art. 43
V. Data protection and disclosure Art. 43a
B. Organisation
I. Civil register authorities 1. Civil registrars
Art. 44
2. Supervisory authorities Art. 45
Ia. Central database Art. 45a
II. Liability
Art. 46
III. Disciplinary measures Art. 47
C. Implementing provisions I. Federal law
Art. 48
II. Cantonal law
Art. 49
Art. 50 and 51
Title Two: Legal Entities Chapter One: General Provisions A. Legal personality
Art. 52
B. Legal capacity
Art. 53
C. Capacity to act
Swiss Civil Code
300
210
I. Requirements
Art. 54
II. Action on behalf of the legal entity Art. 55
D. Seat
Art. 56
E. Dissolution
I. Application of assets Art. 57
II. Liquidation
Art. 58
F. Reservation of public law and company law Art. 59
Chapter Two: Associations A. Formation
I. Corporate group of persons Art. 60
II. Entry in the commercial register Art. 61
III. Associations lacking legal personality Art. 62
IV. Relationship between articles of association and the law Art. 63
B. Organisation
I. General meeting
1. Function, convening of meetings Art. 64
2. Powers
Art. 65
3. Resolutions a. Form Art. 66
b. Voting rights and majority Art. 67
c. Exclusion from voting Art. 68
II. Committee
1. Rights and duties in general Art. 69
2. Accounting
Art. 69a
III. Auditors
Art. 69b
IV. Organisational defects Art. 69c
C. Membership
I. Admission, resignation Art. 70
II. Duty to pay subscriptions Art. 71
III. Exclusion
Art. 72
IV. Status of former members Art. 73
V. Protection of the objects of the association Art. 74
VI. Protection of members Art. 75
Cbis. Liability
Art. 75a
D. Dissolution
I. Manner of dissolution 1. By resolution
Art. 76
Swiss Civil Code
301
210
2. By operation of law Art. 77
3. By court order
Art. 78
II. Deletion from the commercial register Art. 79
Chapter Three: Foundations A. Formation
I. In general
Art. 80
II. Form of establishment Art. 81
III. Challenge
Art. 82
B. Organisation
I. In general
Art. 83
II. Bookkeeping
Art. 83a
III. Auditors
1. Duty of audit and applicable law Art. 83b
2. Supervisory authority Art. 83c
IV. Organisational defects Art. 83d
C. Supervision
Art. 84
Cbis. Measures in the event of overindebtedness and insolvency Art.
84a
Art.
84b
D. Modification of the foundation I. Reorganisation
Art. 85
II. Amendment of objects 1. Request by the supervisory authority or the board of trustees Art.
86
2. At the founder's request or in accordance with his testamentary disposition Art. 86a
III. Minor amendments to the charter Art. 86b
E. Family and ecclesiastical foundations Art. 87
F. Dissolution and deletion from the register I. Dissolution by the competent authority Art. 88
II. Right to apply for dissolution, deletion from the register Art. 89
G. Employee benefits schemes Art. 89a
Title Twobis: Collective Assets A. No management
Art. 89b
B. Jurisdiction
Art. 89c
Swiss Civil Code
302
210
Part Two: Family Law Division One: Marital Law Title Three: Marriage Chapter One: Engagement A. Betrothal
Art. 90
B. Ending the engagement I. Gifts
Art. 91
II. Duty to contribute Art. 92
III. Limitation
Art. 93
Chapter Two: Requirements for Marriage A. Capacity to marry
Art. 94
B. Impediments
I. Kinship
Art. 95
II. Previous marriage Art. 96
Chapter Three: Preparation and Wedding Ceremony A. General principles Art. 97
Abis. Circumvention of the legislation on foreign nationals Art. 97a
B. Preparatory procedure I. Request
Art. 98
II. Conduct and completion of the preparatory procedure Art. 99
III. Time limits
Art. 100
C. Wedding ceremony I. Venue
Art. 101
II. Form
Art. 102
D. Implementing provisions Art. 103
Chapter Four: Annulment of Marriage A. General principle
Art. 104
B. Annulment not subject to a time limit I. Grounds
Art. 105
II. Action for annulment Art. 106
C. Annulment subject to a time limit I. Grounds
Art. 107
II. Action for annulment Art. 108
D. Effects of judgment Art. 109
Swiss Civil Code
303
210
Art.
110
Title Four: Divorce and Separation Chapter One: Requirements for Divorce A. Divorce by joint request I. Comprehensive agreement Art. 111
II. Partial agreement Art. 112
Art.
113
B. Divorce at the petition of one spouse I. After living apart Art. 114
II. Irretrievable breakdown Art. 115
Art.
116
Chapter Two: Separation A. Requirements and procedure Art. 117
B. Effects of separation Art. 118
Chapter Three: Consequences of Divorce A. Civil status of divorced spouses Art. 119
B. Marital property law and inheritance law Art. 120
C. Family home
Art. 121
D. Occupational pensions I. Principle
Art. 122
II. Equitable division of termination benefits Art. 123
III. Equitable division of invalidity pension prior to statutory retirement age Art. 124
IV. Equitable division in the case of invalidity pensions after statutory retirement age and in the case of retirement pensions Art. 124a
V. Exceptions
Art. 124b
VI. Offset of mutual entitlements Art. 124c
VII. Unreasonableness Art. 124d
VIII. Impossibility Art. 124e
E. Post-marital maintenance I. Requirements
Art. 125
II. Modalities of maintenance contributions Art. 126
III. Regular payments 1. Special terms
Art. 127
2. Adjustment for inflation Art. 128
3. Adjustment by court order Art. 129
Swiss Civil Code
304
210
4. Expiry by law
Art. 130
IV. Enforcement
1. Enforcement assistance Art. 131
2. Advance payments Art. 131a
3. Directions to debtors and posting security Art. 132
F. Children
I. Parental rights and obligations Art. 133
II. Change of circumstances Art. 134
Art.
135-149
Art.
150-158
Title Five: General Effects of Marriage A. Marital union; rights and duties of spouses Art. 159
B. Surname
Art. 160
C. Cantonal and communal citizenship Art. 161
D. Marital home
Art. 162
E. Maintenance of the family I. In general
Art. 163
II. Allowance for personal use Art. 164
III. Extraordinary contributions by one spouse Art. 165
F. Representation of the marital union Art. 166
G. Spouses' career or business Art. 167
H. Transactions by the spouses I. In general
Art. 168
II. Family home
Art. 169
J. Duty to inform
Art. 170
K. Protection of the marital union I. Counselling agencies Art. 171
II. Court measures
1. In general
Art. 172
2. While living together a. Financial contributions Art. 173
b. Revocation of powers of representation Art. 174
3. Suspension of joint household a. Grounds Art. 175
b. Arrangements for living apart Art. 176
4. Enforcement
Swiss Civil Code
305
210
a. Enforcement assistance and advance payments Art. 176a
b. Directions to debtors Art. 177
5. Restriction of power to dispose of assets Art. 178
6. Change of circumstances Art. 179
Art.
180
Title Six: Marital Property Law Chapter One: General Provisions A. Ordinary property regime Art. 181
B. Marital agreement I. Choice of regime
Art. 182
II. Capacity to enter into an agreement Art. 183
III. Form of the agreement Art. 184
C. Extraordinary property regime I. At the request of one spouse 1. By court order
Art. 185
2. …
Art. 186
3. Revocation
Art. 187
II. In the event of bankruptcy or distraint 1. Bankruptcy
Art. 188
2. Distraint a. By court order Art. 189
b. Request
Art. 190
3. Revocation
Art. 191
III. Liquidation of the previous marital property regime Art. 192
D. Protection of creditors Art. 193
E. …
Art. 194
F. Management of one spouse's assets by the other Art. 195
G. Inventory
Art. 195a
Chapter Two: Statutory Marital Property Regime of Participation in Acquired Property A. Ownership
I. Categories
Art. 196
II. Acquired property Art. 197
III. Individual property 1. By operation of law Art. 198
2. By marital agreement Art. 199
Swiss Civil Code
306
210
IV. Proof
Art. 200
B. Management, benefits and power of disposal Art. 201
C. Liability toward third parties Art. 202
D. Debts between spouses Art. 203
E. Dissolution of the property regime and liquidation I. Time of dissolution Art. 204
II. Taking back property and settling debts 1. In general
Art. 205
2. Participation in increased value Art. 206
III. Calculating the surplus for each spouse 1. Separation of acquired property and individual property Art. 207
2. Additions
Art. 208
3. Compensation operations between acquired property and individual property Art. 209
4. Surplus
Art. 210
IV. Valuation
1. Market value
Art. 211
2. Capitalised value a. In general Art. 212
b. Special circumstances Art. 213
3. Defining juncture Art. 214
V. Participation in the surplus 1. By law
Art. 215
2. By agreement a. In general Art. 216
b. On divorce, separation, annulment of the marriage or separation of property by court order Art. 217
VI. Payment of the participation claim and the share of the increased value 1. Deferred payment
Art. 218
2. Home and household effects Art. 219
3. Claims against third parties Art. 220
Chapter Three: Community of Property A. Ownership
I. Categories
Art. 221
II. Common property 1. General community of property Art. 222
2. Limited community of property
Swiss Civil Code
307
210
a. Community restricted to acquired property Art. 223
b. Further community of property regimes Art. 224
III. Individual property Art. 225
IV. Proof
Art. 226
B. Management and power of disposal I. Common property
1. Everyday housekeeping Art. 227
2. Extraordinary housekeeping Art. 228
3. Use of common property for professional or business purposes Art.
229
4. Renunciation and acceptance of inheritances Art. 230
5. Liability and management costs Art. 231
II. Individual property Art. 232
C. Liability toward third parties I. Full liability
Art. 233
II. Individual liability Art. 234
D. Debts between spouses Art. 235
E. Dissolution of the property regime and liquidation I. Time of dissolution Art. 236
II. Allocation to individual property Art. 237
III. Compensation operations between joint and individual property Art.
238
IV. Participation in increased value Art. 239
V. Valuation
Art. 240
VI. Division
1. On death or implementation of a different marital property regime Art. 241
2. In other cases
Art. 242
VII. Division of the property 1. Individual property Art. 243
2. Home and household effects Art. 244
3. Other assets
Art. 245
4. Further provisions Art. 246
Chapter Four: Separation of Property A. Management, benefits and power of disposal I. In general
Art. 247
II. Proof
Art. 248
B. Liability toward third parties Art. 249
Swiss Civil Code
308
210
C. Debts between spouses Art. 250
D. Allocation of property in co-ownership Art. 251
Division Two: Kinship Title Seven: Formation of the Parent-child Relationship Chapter One: General Provisions A. Formation of parent-child relationship in general Art. 252
B. …
Art. 253
Art.
254
Chapter Two: Paternity of the Husband A. Presumption
Art. 255
B. Challenge
I. Right to challenge Art. 256
II. Grounds for challenge 1. In the case of conception in wedlock Art. 256a
2. In the case of conception before marriage or while spouses were living apart Art. 256b
III. Time limits
Art. 256c
C. Conflict of presumptions Art. 257
D. Challenge by the parents Art. 258
E. Marriage of the parents Art. 259
Chapter Three: Recognition and Court Declaration of Paternity A. Recognition
I. Admissibility and form Art. 260
II. Challenge
1. Right to challenge Art. 260a
2. Grounds
Art. 260b
3. Time limits
Art. 260c
B. Action to determine paternity I. Right to bring the action Art. 261
II. Presumption
Art. 262
III. Time limits
Art. 263
Chapter Four: Adoption A. Adoption of minors I. General requirements Art. 264
Swiss Civil Code
309
210
II. Joint adoption
Art. 264a
III. Adoption by a single person Art. 264b
IV. Child's age and consent Art. 265
V. Parents' consent 1. Form
Art. 265a
2. Time of consent
Art. 265b
3. Dispensing with consent a. Requirements Art. 265c
b. Decision
Art. 265d
B. Adoption of an adult Art. 266
C. Effect
I. In general
Art. 267
II. Citizenship
Art. 267a
D. Procedure
I. In general
Art. 268
II. Investigation
Art. 268a
Dbis. Confidentiality of adoption information Art. 268b
Dter. Information on biological parents Art. 268c
E. Challenge
I. Grounds
1. Lack of consent
Art. 269
2. Other defects
Art. 269a
II. Time limits
Art. 269b
F. Adoption agency services Art. 269c
Title Eight: Effects of the Parent-Child Relationship Section One: Community of Parents and Children A. Family surname
I. Child of married parents Art. 270
II. Child of unmarried parents Art. 270a
III. Consent of the child Art. 270b
B. Citizenship
Art. 271
C. Support and common welfare Art. 272
D. Contact
I. Parents and children 1. Principle
Art. 273
2. Restrictions
Art. 274
Swiss Civil Code
310
210
II. Third parties
Art. 274a
III. Responsible authorities Art. 275
E. Right to information Art. 275a
Section Two: Parents' Duty of Maintenance A. General
I. Object and scope Art. 276
II. Precedence of maintenance for minors Art. 276a
B. Duration
Art. 277
C. Married parents
Art. 278
D. Court action
I. Right to sue
Art. 279
II. and III. … Art. 280-284
IV. Amount of child maintenance contribution 1. Parents' contribution Art. 285
2. Other payments for maintenance of the child Art. 285a
V. Change of circumstances 1. In general
Art. 286
2. Shortfalls
Art. 286a
E. Maintenance agreements I. Regular payments
Art. 287
II. Scope of a maintenance agreement Art. 287a
III. Final settlement Art. 288
F. Fulfilment
I. Entitlement
Art. 289
II. Enforcement
1. Enforcement assistance Art. 290
2. Directions to debtors Art. 291
III. Security
Art. 292
G. Public law
Art. 293
H. Foster parents
Art. 294
J. Rights of the unmarried mother Art. 295
Section Three: Parental Responsibility A. Principles
Art. 296
Abis. Death of a parent Art. 297
Ater. Divorce and other marital proceedings Art. 298
Aquater. Recognition and court declaration of paternity
Swiss Civil Code
311
210
I. Joint declaration by the parents Art. 298a
II. Decision of the child protection authority Art. 298b
III. Paternity action Art. 298c
IV. Change in circumstances Art. 298d
Aquinquies. Step-parents Art. 299
Asexies. Foster parents Art. 300
B. Scope
I. In general
Art. 301
II. Deciding on the place of residence Art. 301a
III. Upbringing
Art. 302
IV. Religious upbringing Art. 303
V. Representation
1. In relation to third parties a. In general Art. 304
b. Child's legal status Art. 305
2. Within the family community Art. 306
C. Child protection I. Appropriate measures Art. 307
II. Deputyship
Art. 308
Art.
309
III. Revocation of the right to decide on place of residence Art. 310
IV. Withdrawal of parental responsibility 1. Ex-officio
Art. 311
2. With the parents' consent Art. 312
V. Change in circumstances Art. 313
VI. Procedure
1. General
Art. 314
2. Hearing for the child Art. 314a
3. Representation for the child Art. 314abis
4. Committal to a secure institution or psychiatric hospital Art. 314b
VII. Jurisdiction
1. In general
Art. 315
2. In marital proceedings a. Jurisdiction of the court Art. 315a
b. Amendment of court orders Art. 315b
VIII. Supervision of foster children Art. 316
IX. Co-operation in youth support Art. 317
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210
Section Four: Property of the Child A. Management
Art. 318
B. Use of income
Art. 319
C. Drawing on the child's assets Art. 320
D. Freely disposable property of the child I. Endowments
Art. 321
II. Statutory entitlement Art. 322
III. Employment income, professional and business assets Art. 323
E. Protection of the child's property I. Appropriate measures Art. 324
II. Withdrawal of management Art. 325
F. End of asset management I. Return of property Art. 326
II. Liability
Art. 327
Section Five: Minors subject to Guardianship A. Principle
Art. 327a
B. Legal status
I. Of the child
Art. 327b
II. Of the guardian Art. 327c
Title Nine: Family Community Chapter One: Duty of Assistance A. Persons obliged to lend assistance Art. 328
B. Scope and enforcement of the claim for assistance Art. 329
C. Maintenance of foundlings Art. 330
Chapter Two: Authority within the Household A. Requirement
Art. 331
B. Effect
I. House rules and welfare Art. 332
II. Liability
Art. 333
III. Claims of children and grandchildren 1. Requirements
Art. 334
2. Asserting claims Art. 334bis
Chapter Three: Family Property A. Family foundations Art. 335
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B. Ownership in undivided shares I. Formation
1. Authority
Art. 336
2. Form
Art. 337
II. Duration
Art. 338
III. Effect
1. Type of ownership Art. 339
2. Management and representation a. In general Art. 340
b. Manager's powers Art. 341
3. Common property and personal property Art. 342
IV. Dissolution
1. Grounds
Art. 343
2. Notice, insolvency, marriage Art. 344
3. Death of a co-owner Art. 345
4. Division
Art. 346
V. Revenue-generating co-ownership 1. Nature
Art. 347
2. Special grounds for dissolution Art. 348
Art.
349-358
Art.
359
Division Three: The Protection of Adults Title Ten: Own Arrangements for Care and Statutory Measures Section One: Own Arrangements for Care Subsection One: The Advance Care Directive A. Principle
Art. 360
B. Execution and revocation I. Execution
Art. 361
II. Revocation
Art. 362
C. Decision on effectiveness and acceptance Art. 363
D. Interpretation and clarification Art. 364
E. Fulfilment
Art. 365
F. Remuneration and expenses Art. 366
G. Termination
Art. 367
H. Intervention by the adult protection authority Art. 368
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I. Regaining the capacity of judgement Art. 369
Subsection Two: The Patient Decree A. Principle
Art. 370
B. Execution and revocation Art. 371
C. Loss of capacity of judgement Art. 372
D. Intervention by the adult protection authority Art. 373
Section Two: Statutory Measures for Persons lacking Capacity of Judgement Sub-Section One: Representation by the Spouse or Registered Partner A. Requirements for and extent of the right to act as representative Art.
374
B. Exercise of the right to act as representative Art. 375
C. Intervention by the adult protection authority Art. 376
Sub-Section Two: Representation in relation to Medical Procedures A. Treatment plan
Art. 377
B. The representative Art. 378
C. Urgent cases
Art. 379
D. Treatment of a mental disorder Art. 380
E. Intervention by the adult protection authority Art. 381
Sub-Section Three: Stays in Residential or Care Institutions A. Care agreement
Art. 382
B. Restriction of freedom of movement I. Requirements
Art. 383
II. Records and Information Art. 384
III. Intervention by the adult protection authority Art. 385
C. Protection of privacy Art. 386
D. Supervision of residential and care institution Art. 387
Title Eleven: Official Measures Section One: General Principles A. Aim
Art. 388
B. Subsidiarity and proportionality Art. 389
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Section Two: The Deputyship Sub-Section One: General Provisions A. Requirements
Art. 390
B. Scope of responsibilities Art. 391
C. Dispensing with a deputyship Art. 392
Sub-Section Two: Types of Deputyship A. Assistance deputyship Art. 393
B. Representative deputyship I. In general
Art. 394
II. Asset management Art. 395
C. Advisory deputyship Art. 396
D. Combination of deputyships Art. 397
E. General deputyship Art. 398
Sub-Section Three: End of the Deputyship Art.
399
Sub-Section Four: The Deputy A. Appointment
I. General requirements Art. 400
II. Wishes of the client or his or her closely associated persons Art. 401
III. Appointment of two or more persons Art. 402
B. Incapacity and conflict of interests Art. 403
C. Remuneration and expenses Art. 404
Sub-Section Five: Deputyship Tasks A. Assumption of office Art. 405
B. Relationship with the client Art. 406
C. Client's autonomy Art. 407
D. Asset management I. Tasks
Art. 408
II. Personal allowance Art. 409
III. Accounts
Art. 410
E. Reporting
Art. 411
F. Special transactions Art. 412
G. Duties of care and confidentiality Art. 413
H. Amendment of conditions Art. 414
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Sub-Section Six: Role of the Adult Protection Authority A. Examination of accounts and report Art. 415
B. Transactions requiring consent I. By law
Art. 416
II. By order
Art. 417
III. Lack of consent Art. 418
Sub-Section Seven: Intervention by the Adult Protection Authority Art.
419
Sub-Section Eight: Special Provisions for Family Members Art.
420
Sub-Section Nine: Termination of the Office of Deputy A. By law
Art. 421
B. Discharge
I. At the deputy's request Art. 422
II. Other cases
Art. 423
C. Continuation of transactions Art. 424
D. Final report and final accounts Art. 425
Section Three: Care-Related Hospitalisation A. The measures
I. Hospitalisation for treatment or care Art. 426
II. Detention of persons admitted voluntarily Art. 427
B. Responsibility for hospitalisation and discharge I. Adult protection authority Art. 428
II. Doctors
1. Responsibility
Art. 429
2. Procedures
Art. 430
C. Regular review
Art. 431
D. Authorised representative Art. 432
E. Medical measures in the case of a mental disorder I. Treatment plan
Art. 433
II. Treatment without consent Art. 434
III. Emergencies
Art. 435
IV. Pre-discharge interview Art. 436
V. Cantonal law
Art. 437
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F. Measures restricting freedom of movement Art. 438
G. Petition to the court Art. 439
Title Twelve: Organisation Section One: Authorities and Local Jurisdiction A. Adult protection authority Art. 440
B. Supervisory authority Art. 441
C. Local jurisdiction Art. 442
Section Two: Procedure Sub-section One: Before the Adult Protection Authority A. Notification rights and obligations Art. 443
B. Verification of jurisdiction Art. 444
C. Precautionary measures Art. 445
D. Procedural principles Art. 446
E. Hearing
Art. 447
F. Obligations to cooperate and administrative assistance Art. 448
G. Assessment in an institution Art. 449
H. Appointment of a representative Art. 449a
I. Inspection of files Art. 449b
J. Notification duty Art. 449c
Sub-section Two: Before the Appellate Authority A. Object and right of appeal Art. 450
B. Grounds of appeal Art. 450a
C. Deadline for filing the appeal Art. 450b
D. Suspensive effect Art. 450c
E. Consultation with the lower instance and reconsideration Art.
450d
F. Special provisions in the case of care-related hospitalisation Art.
450e
Sub-Section Three: Joint Provision Art.
450f
Sub-Section Four: Enforcement Art.
450g
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Section Three: Relationship with Third parties and Duty of Cooperation A. Duty of confidentiality and information Art. 451
B. Effect of the measures on third parties Art. 452
C. Duty of cooperation Art. 453
Section Four: Accountability A. Principle
Art. 454
B. Limitation periods Art. 455
C. Liability under agency law Art. 456
Part Three: Law of Succession Division One: Heirs Title Thirteen: Statutory Heirs A. Related heirs
I. Issue
Art. 457
II. Parental line
Art. 458
III. Grandparental line Art. 459
IV. Scope of succession rights Art. 460
Art.
461
B. Surviving spouses and registered partners Art. 462
C… Art.
463-464
Art.
465
D. State authority
Art. 466
Title Fourteen: Testamentary Dispositions Section One: Testamentary Capacity A. Wills
Art. 467
B. Contract of succession Art. 468
C. Voidable dispositions Art. 469
Section Two: Testamentary Freedom A. Disposable part
I. Scope of testamentary powers Art. 470
II. Statutory entitlement Art. 471
III. …
Art. 472
IV. Dispositions in favour of the spouse Art. 473
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V. Calculation of the disposable part 1. Deduction of debts Art. 474
2. Inter vivos gifts Art. 475
3. Insurance claims Art. 476
B. Disinheritance
I. Grounds
Art. 477
II. Effect
Art. 478
III. Burden of proof Art. 479
IV. Disinheritance of an insolvent person Art. 480
Section Three: Types of Disposition A. In general
Art. 481
B. Burdens and conditions Art. 482
C. Naming of heirs
Art. 483
D. Legacy
I. Nature
Art. 484
II. Duty on the obligor of the legacy Art. 485
III. Relationship to the estate Art. 486
E. Substitution
Art. 487
F. Remaindermen
I. Designation of a remainderman Art. 488
II. Time of delivery Art. 489
III. Security
Art. 490
IV. Legal status
1. Of the provisional heir Art. 491
2. Of the remainderman Art. 492
V. Issue lacking capacity of judgement Art. 492a
G. Foundations
Art. 493
H. Contracts of succession I. Contracts naming heirs and making legacies Art. 494
II. Renunciation of inheritance 1. Significance
Art. 495
2. Void renunciation Art. 496
3. Rights of the creditors of the estate Art. 497
Section Four: Formal Requirements of Testamentary Dispositions A. Wills
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210
I. Drawing up a will 1. In general
Art. 498
2. By public deed a. Formal requirements Art. 499
b. Role of the public official Art. 500
c. Role of the witnesses Art. 501
d. Drawing up a will without the testator reading and signing it Art.
502
e. Persons involved Art. 503
f. Safekeeping of wills Art. 504
3. Holographic will Art. 505
4. Oral will a. Dispositions Art. 506
b. Conversion into deed Art. 507
c. Loss of validity Art. 508
II. Revocation and destruction 1. Revocation
Art. 509
2. Destruction
Art. 510
3. Subsequent wills Art. 511
B. Contracts of succession I. Execution
Art. 512
II. Revocation
1. Inter vivos a. By contract and by will Art. 513
b. By withdrawal from the contract Art. 514
2. Predeceased heir Art. 515
C. Restriction of testamentary freedom Art. 516
Section Five: Executors A. Appointment of executors Art. 517
B. Function of an executor Art. 518
Section Six: Declaration of Invalidity and Abatement of Dispositions A. Action for declaration of invalidity I. On grounds of lack of testamentary capacity, lack of free will, unlawfulness or immorality Art. 519
II. On grounds of formal defect 1. In general
Art. 520
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2. In holographic wills Art. 520a
III. Time limits
Art. 521
B. Action in abatement I. Requirements
1. In general
Art. 522
2. Bequests in favour of heirs with a statutory entitlement Art. 523
3. Rights of creditors Art. 524
II. Effect
1. Of abatement in general Art. 525
2. On specific legacies Art. 526
3. On dispositions inter vivos a. Cases Art. 527
b. Restitution
Art. 528
4. On assurance claims Art. 529
5. On usufruct and annuities Art. 530
6. On naming of remaindermen Art. 531
III. Order of abatement Art. 532
IV. Prescription
Art. 533
Section Seven: Claims under Contracts of Succession A. Claims in respect of lifetime transfers Art. 534
B. Hotchpot in the case of renunciation of inheritance I. Abatement
Art. 535
II. Reimbursement
Art. 536
Division Two: Succession Title Fifteen: Commencement of Succession A. Requirements for the deceased Art. 537
B. Place where succession commences Art. 538
C. Requirements for the heirs I. Capacity
1. Legal capacity
Art. 539
2. Unworthiness to inherit a. Grounds Art. 540
b. Effect on issue
Art. 541
II. Capacity to inherit on succession 1. As heir
Art. 542
2. As legatee
Art. 543
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3. Unborn child
Art. 544
4. Remaindermen
Art. 545
D. Presumption of death I. Inheriting from persons presumed dead 1. Devolution against security Art. 546
2. Annulment of presumption of death and restitution Art. 547
II. Succession rights of persons presumed dead Art. 548
III. Correlation of the two cases Art. 549
IV. Procedure ex officio Art.
550
Title Sixteen: Effect of Succession Chapter One: Measures to Safeguard Succession A. In general
Art. 551
B. Sealing the estate Art. 552
C. Inventory
Art. 553
D. Estate administrators I. In general
Art. 554
II. In the case of unknown heirs Art. 555
E. Probate proceedings I. Duty to submit the will Art. 556
II. Reading the will Art. 557
III. Notification of interested parties Art. 558
IV. Release of the estate Art. 559
Chapter Two: Vesting of the Estate A. Vesting
I. Heirs
Art. 560
II. …
Art. 561
III. Legatees
1. Vesting
Art. 562
2. Object
Art. 563
3. Relationship between creditors and legatees Art. 564
4. Abatement
Art. 565
B. Disclaimer
I. Declaration
1. Right to renounce Art. 566
2. Time limit a. In general Art. 567
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b. In the case of an inventory Art. 568
3. Passing of right to disclaim Art. 569
4. Form
Art. 570
II. Forfeiture of right to disclaim Art. 571
III. Disclaimer by one co-heir Art. 572
IV. Disclaimer by all the nearest heirs 1. In general
Art. 573
2. Entitlement of surviving spouse Art. 574
3. Disclaimer in favour of subsequent heirs Art. 575
V. Extension of time limit Art. 576
VI. Disclaimer of a legacy Art. 577
VII. Security for the heir's creditors Art. 578
VIII. Liability in the event of disclaimer Art. 579
Chapter Three: Public Inventory A. Requirements
Art. 580
B. Procedure
I. Inventory
Art. 581
II. Formal call to account Art. 582
III. Inclusion ex officio Art.
583
IV. Result
Art. 584
C. Situation of the heirs during the inventory I. Administration
Art. 585
II. Debt enforcement, litigation, time limit Art. 586
D. Effect
I. Time limit for declaration of intention Art. 587
II. Declaration of intention Art. 588
III. Effects of acceptance subject to public inventory 1. Liability as per inventory Art. 589
2. Liability beyond the inventory Art. 590
E. Liability for debts subject to a surety Art. 591
F. Acquisition by a state authority Art. 592
Chapter Four: Official Liquidation A. Requirements
I. At the request of an heir Art. 593
II. At the request of the deceased's creditors Art. 594
B. Procedure
I. Administration
Art. 595
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II. Ordinary liquidation Art.
596
III. Liquidation by the bankruptcy office Art. 597
Chapter Five: Action for Recovery of Inheritance A. Requirements
Art. 598
B. Effect
Art. 599
C. Time limit
Art. 600
D. Action by a legatee Art. 601
Title Seventeen: Division of the Estate Chapter One: Community of Heirs prior to Division A. Effect of succession I. Community of heirs Art. 602
II. Liability of the heirs Art. 603
B. Right to division Art. 604
C. Deferral of division Art. 605
D. Claims of household members Art. 606
Chapter Two: Method of Division A. In general
Art. 607
B. Instructions concerning the division I. Testamentary disposition Art. 608
II. Assistance from the authorities Art. 609
C. Performing the division I. Equal rights of heirs Art. 610
II. Formation of lots Art. 611
III. Allocation and sale of specific objects Art. 612
IV. Allocation of the home and household effects to the surviving spouse Art. 612a
D. Special items
I. Items that belong together, family documents Art. 613
I.bis Agricultural inventory Art. 613a
II. Claims of the deceased against his or her heirs Art. 614
III. Pledged estate property Art. 615
Art.
616
IV. Land
1. Method of allocation
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210
a. Imputed value
Art. 617
b. Valuation procedure Art. 618
V. Agricultural businesses and land Art. 619
Art.
620-625
Chapter Three: Hotchpot A. Hotchpot duty of the heirs Art. 626
B. Hotchpot if heirs cease to be heirs Art. 627
C. Calculation method I. In kind or by imputation of value Art. 628
II. Correlation with share of the estate Art. 629
III. Hotchpot value Art. 630
D. Education costs
Art. 631
E. Occasional gifts Art. 632
Art.
633
Chapter Four: Completion and Effect of Division A. Agreement
I. Contract of division Art. 634
II. Contracts regarding shares of the estate Art. 635
III. Contracts prior to succession Art. 636
B. Liability among co-heirs I. Warranty
Art. 637
II. Challenging the division Art. 638
C. Liability toward third parties I. Joint and several liability Art. 639
II. Recourse against co-heirs Art. 640
Part Four: Property Law Division One: Ownership Title Eighteen: General Provisions A. Nature of ownership I. In general
Art. 641
II. Animals
Art. 641a
B. Scope of ownership I. Constituent parts
Art. 642
II. Natural fruits
Art. 643
III. Accessories
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1. Definition
Art. 644
2. Exclusions
Art. 645
C. Collective ownership I. Co-ownership
1. Relationship among co-owners Art. 646
2. Use and administration rules Art. 647
3. Ordinary administration Art. 647a
4. Major administrative acts Art. 647b
5. Construction work a. Necessary work Art. 647c
b. Useful work
Art. 647d
c. Works to improve appearance or convenience Art. 647e
6. Power of disposal over the object Art. 648
7. Costs and expenses Art. 649
8. Binding nature of rules and noting in the land register Art. 649a
9. Exclusion from collective ownership a. Co-owners Art. 649b
b. Further entitled persons Art. 649c
10. Dissolution a. Right to request division Art. 650
b. Form of partition Art. 651
c. Animals kept as pets Art. 651a
II. Joint ownership 1. Prerequisites
Art. 652
2. Effect
Art. 653
3. Dissolution
Art. 654
III. Joint ownership of agricultural enterprises and land Art. 654a
Title Nineteen: Land Ownership Chapter One: Object, Acquisition and Loss of Land Ownership A. Subject matter
I. Immovable property738 Art. 655
II. Dependent property Art. 655a
B. Acquisition
738 Amended by No I 1 of the FA of 11 Dec. 2009 (Register Mortgage Certificates and other amendments to Property Law), in force since 1 Jan. 2012 (AS 2011 4637; BBl 2007 5283).
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I. Registration
Art. 656
II. Types of acquisition 1. Transfer
Art. 657
2. Appropriation
Art. 658
3. Formation of new land Art. 659
4. Ground displacement a. In general Art. 660
b. Constant ground displacement Art. 660a
c. Redrawing of boundaries Art. 660b
5. Adverse possession a. Ordinary adverse possession Art. 661
b. Extraordinary adverse possession Art. 662
c. Time limits
Art. 663
6. Ownerless and public objects Art. 664
III. Right to registration Art. 665
C. Loss
Art. 666
D. Judicial measures I. Where the owner cannot be found Art. 666a
II. In the absence of the required management bodies Art. 666b
Chapter Two: Substance and Limitation of Land Ownership A. Substance
I. Scope
Art. 667
II. Boundaries
1. Type of boundary Art. 668
2. Duty to establish boundaries Art. 669
3. Co-ownership of boundary markers Art. 670
III. Buildings on the parcel of land 1. Land and building materials a. Ownership Art. 671
b. Compensation
Art. 672
c. Assignment of land ownership Art. 673
2. Encroaching buildings Art. 674
3. Building right
Art. 675
4. Pipes, cables, conduits Art. 676
5. Movable structures Art. 677
IV. Plants grown on the parcel of land Art. 678
V. Landowner's liability
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1. Acts in excess of ownership rights Art. 679
2. Lawful management of the land Art. 679a
B. Limitations
I. In general
Art. 680
II. Restrictions on alienation; statutory right of pre-emption 1. General principles Art. 681
2. Exercise
Art. 681a
3. Modification, waiver Art. 681b
4. In respect of co-ownership and building rights Art. 682
5. Right of pre-emption of farms and farmland Art. 682a
Art.
683
III. Law of neighbours 1. Excess detriment
Art. 684
2. Excavation and construction a. Rule Art. 685
b. Cantonal regulations Art. 686
3. Plants a. Rule
Art. 687
b. Cantonal regulations Art. 688
4. Flowing waters
Art. 689
5. Drainage
Art. 690
6. Pipes, cables, conduits a. Duty to permit Art. 691
b. Safeguarding the interests of the servient landowner Art. 692
c. Change of circumstances Art. 693
7. Rights of way a. Necessary right of way Art. 694
b. Other rights of way Art. 695
c. Notation in the land register Art. 696
8. Enclosure
Art. 697
9. Duty to maintain Art. 698
IV. Right of access and to ward off danger 1. Access
Art. 699
2. Retrieval of driftage and the like Art. 700
3. Trespass to ward off danger or damage Art. 701
V. Public law restrictions on ownership 1. In general
Art. 702
2. Land improvements Art. 703
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C. Rights to springs and wells I. Spring ownership and spring rights Art. 704
II. Diversion of springs Art. 705
III. Cutting off springs 1. Damages
Art. 706
2. Restoration
Art. 707
IV. Community of spring owners Art. 708
V. Use of springs
Art. 709
VI. Right to use an essential water source Art. 710
VII. Duty to cede
1. Water sources
Art. 711
2. Land
Art. 712
Chapter Three: Condominium A. Definition and object I. Definition
Art. 712a
II. Object
Art. 712b
III. Power of disposal Art. 712c
B. Creation and extinction I. Deed of constitution Art. 712d
II. Layout of the condominium units and shares in the property Art. 712e III. Extinction Art. 712f
C. Administration and use I. Applicable provisions Art. 712g
II. Communal charges and costs 1. Definition and distribution Art. 712h
2. Liability for cost contributions a. Statutory lien Art. 712i
b. Special lien
Art. 712k
III. Community's capacity to act Art. 712l
D. Organisation
I. Assembly of condominium owners 1. Competence and legal status Art. 712m
2. Convening and chairing meetings Art. 712n
3. Voting rights
Art. 712o
4. Quorum
Art. 712p
II. Administrator
1. Appointment
Art. 712q
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210
2. Removal
Art. 712r
3. Duties a. Implementation of provisions and resolutions concerning administration and use Art. 712s
b. External representation Art. 712t
Title Twenty: Chattel Ownership A. Object
Art. 713
B. Forms of acquisition I. Transfer
1. Delivery of possession Art. 714
2. Reservation of ownership a. In general Art. 715
b. Transactions involving payment by instalments Art. 716
3. Acquisition without possession Art. 717
II. Appropriation
1. Ownerless chattels Art. 718
2. Escaped animals
Art. 719
III. Found property 1. Reporting, tracing a. In general Art. 720
b. Animals
Art. 720a
2. Safekeeping and auction Art. 721
3. Acquisition of ownership, return Art. 722
4. Treasure trove
Art. 723
5. Objects of scientific value Art. 724
IV. Driftage
Art. 725
V. Processing
Art. 726
VI. Joining and mixing chattels Art. 727
VII. Adverse possession Art. 728
C. Loss
Art. 729
Division Two: Limited Rights in rem Title Twenty-One: Easements and Real Burdens Chapter One: Easements A. Object
Art. 730
B. Creation and extinction I. Creation
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210
1. Registration
Art. 731
2. Legal transaction Art. 732
3. Creation in favour of own property Art. 733
II. Extinction
1. In general
Art. 734
2. Amalgamation
Art. 735
3. By court order
Art. 736
C. Nature
I. Scope
1. In general
Art. 737
2. As defined by land register entry Art. 738
3. If needs change
Art. 739
4. Cantonal law and local custom Art. 740
5. In the case of two or more beneficiaries Art. 740a
II. Duty of maintenance Art. 741
III. Relocation of the encumbrance Art. 742
IV. Partition of a property Art. 743
Art.
744
Chapter Two: Usufruct and other Personal Servitudes A. Usufruct
I. Object
Art. 745
II. Establishment
1. In general
Art. 746
2. …
Art. 747
III. Extinction
1. Grounds
Art. 748
2. Duration
Art. 749
3. Replacement on extinction of usufruct Art. 750
4. Return a. Duty
Art. 751
b. Liability
Art. 752
c. Costs
Art. 753
5. Limitation of compensation rights Art. 754
IV. Scope
1. Rights of the usufructuary a. In general Art. 755
b. Natural fruits
Art. 756
c. Interest
Art. 757
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d. Assignability
Art. 758
2. Rights of the owner a. Supervision Art. 759
b. Security
Art. 760
c. Security in the case of gifts and statutory usufruct Art. 761
d. Consequence of failure to provide security Art. 762
3. Inventory
Art. 763
4. Costs a. Preservation of the object Art. 764
b. Maintenance and administration Art. 765
c. Duty to pay interest on usufruct of assets Art. 766
d. Insurance
Art. 767
V. Special cases
1. Land a. Fruits
Art. 768
b. Use
Art. 769
c. Woodland
Art. 770
d. Mines
Art. 771
2. Consumables and valued chattels Art. 772
3. Claims a. Scope
Art. 773
b. Repayments and reinvestment Art. 774
c. Right to assignment Art. 775
B. Right of residence I. In general
Art. 776
II. Rights of the usufructuary Art. 777
III. Maintenance costs Art. 778
C. Building right
I. Object and entry in the land register Art. 779
II. Legal transaction Art. 779a
III. Nature, scope and noting Art. 779b
IV. Consequences of expiry 1. Reversion
Art. 779c
2. Compensation
Art. 779d
Art.
779e
V. Premature reversion 1. Prerequisites
Art. 779f
2. Exercising the right of reversion Art. 779g
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3. Other applicable cases Art. 779h
VI. Liability for remuneration for the right 1. Right to establish a charge Art. 779i
2. Registration
Art. 779k
VII. Maximum duration Art. 779l
D. Right of access to water sources Art. 780
E. Other servitudes Art. 781
F. Judicial measures Art. 781a
Chapter Three: Real Burdens A. Object
Art. 782
B. Establishment and extinction I. Establishment
1. Registration and form of acquisition Art. 783
2. Public law real burdens Art. 784
Art.
785
II. Extinction
1. In general
Art. 786
2. Redemption a. By the creditor Art. 787
b. By the debtor
Art. 788
c. Redemption sum
Art. 789
3. Prescription
Art. 790
C. Scope
I. Creditor's rights Art. 791
II. Debt liability
Art. 792
Title Twenty-Two: Mortgages Chapter One: General Provisions A. Requirements
I. Types
Art. 793
II. Form of the debt 1. Amount
Art. 794
2. Interest
Art. 795
III. Immovable property 1. Property subject to a mortgage Art. 796
2. Specification a. In the case of a single property Art. 797
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b. In the case of more than one property Art. 798
3. Agricultural properties Art. 798a
B. Creation and extinction I. Creation
1. Registration
Art. 799
2. In the case of joint ownership Art. 800
II. Extinction
Art. 801
III. Charges on consolidated land 1. Transfer of charges Art. 802
2. Redemption by the debtor Art. 803
3. Monetary compensation Art. 804
C. Effect
I. Extent of security Art. 805
II. Rent
Art. 806
III. Prescription
Art. 807
IV. Conservatory measures 1. In the event of a reduction in value a. Court order and action by the creditor Art. 808
b. Security, restoration, redemption Art. 809
2. Depreciation without owner's fault Art. 810
3. Disposal of minor portions of the property Art. 811
V. Further encumbrances Art. 812
VI. Rank
1. Effect of rank
Art. 813
2. Ranking
Art. 814
3. Vacant ranks
Art. 815
VII. Foreclosure
1. Mode
Art. 816
2. Distribution of the proceeds Art. 817
3. Extent of security Art. 818
4. Security for maintenance costs Art. 819
VIII. Charge in the case of land improvements 1. Precedence
Art. 820
2. Extinction of debt and charge Art. 821
IX. Entitlement to insurers' payments Art. 822
X. Untraceable creditor Art. 823
Chapter Two: Mortgages A. Purpose and nature Art. 824
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B. Establishment and extinction I. Establishment
Art. 825
II. Extinction
1. Right to have entry deleted Art. 826
2. Position of owner Art. 827
3. Unilateral redemption a. Conditions and procedure Art. 828
b. Public auction
Art. 829
c. Official valuation Art. 830
4. Termination
Art. 831
C. Effect
I. Ownership and liability 1. Alienation
Art. 832
2. Division
Art. 833
3. Notice of assumption of debt Art. 834
II. Assignment of a debt Art. 835
D. Statutory mortgage right I. Under cantonal law Art. 836
II. With entry
1. Cases in point
Art. 837
2. Vendor, co-heirs and co-owners Art. 838
3. Tradesmen and building contractors a. Registration Art. 839
b. Rank
Art. 840
c. Privileged claim Art. 841
Chapter Three: Mortgage Certificates A. Mortgage certificate I. Purpose; Relationship with the debt arising from the basic relationship Art.
842
II. Form
Art. 843
III. Position of owner Art. 844
IV. Sale. Division
Art. 845
V. Mortgage certificate debt and ancillary agreements 1. In general
Art. 846
2. Notice
Art. 847
VI. Protection of persons acting in good faith Art. 848
VII. Objections by the debtor Art. 849
VIII. Authorised person Art. 850
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IX. Place of payment Art. 851
X. Changes in the legal relationship Art. 852
XI. Discharge
Art. 853
XII. Extinction
1. In the absence of a creditor Art. 854
2. Deletion
Art. 855
XIII. Public call to creditors Art. 856
B. Register mortgage certificate I. Establishment
Art. 857
II. Transfer
Art. 858
III. Pledging, distraint and usufruct Art. 859
C. Mortgage certificate on paper I. Creation
1. Registration
Art. 860
2. Document of title Art. 861
II. Protection of persons acting in good faith Art. 862
III. Creditor's rights 1. Claims
Art. 863
2. Assignment
Art. 864
IV. Cancellation
Art. 865
Art.
866-874
Chapter Four: Issue of Bonds secured by a Mortgage Right A. Bond issues secured by a lien Art. 875
Art.
876-883
Title Twenty-Three: Charges on Chattels Chapter One: Pledges of Chattels and Special Liens A. Pledges
I. Establishment
1. Possession by pledgee Art. 884
2. Pledge of livestock Art. 885
3. Subordinate pledge Art. 886
4. Further pledge by pledgee Art. 887
II. Extinction
1. Loss of possession Art. 888
2. Return
Art. 889
3. Liability of the pledgee Art. 890
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III. Effect
1. Rights of the pledgee Art. 891
2. Scope of the general lien Art. 892
3. Rank
Art. 893
4. Default agreements Art. 894
B. Special lien
I. Requirements
Art. 895
II. Exceptions
Art. 896
III. In the event of insolvency Art. 897
IV. Effect
Art. 898
Chapter Two: Liens on Debts and Other Rights A. In general
Art. 899
B. Establishment
I. In the case of ordinary claims Art. 900
II. In the case of securities Art. 901
III. In the case of documents of title to goods Art. 902
IV. Subordinate pledge Art. 903
C. Effect
I. Extent of security Art. 904
II. Representation of pledged shares and capital contributions to limited liability companies Art. 905
III. Administration and payment Art. 906
Chapter Three: Pawnbroking A. Pawnbrokers
I. Licensing
Art. 907
II. Duration of licence Art. 908
B. Pawning
I. Establishment
Art. 909
II. Effect
1. Sale of pawned chattel Art. 910
2. Right to surplus Art. 911
III. Redemption of the pawned chattel 1. Right of redemption Art. 912
2. Pawnbroker's rights Art. 913
C. Purchase with right of repurchase Art. 914
D. Rules governing pawnbroking Art. 915
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Chapter Four: … Art.
916-918
Division Three: Possession and the Land Register Title Twenty-Four: Possession A. Definition and types I. Definition
Art. 919
II. Direct and derivative possession Art. 920
III. Temporary interruption Art. 921
B. Transfer
I. Among parties present in person Art. 922
II. Among absent persons Art. 923
III. Without physical transfer Art. 924
IV. In the case of documents of title to goods Art. 925
C. Legal remedies
I. Protection of possession 1. Defence against interference Art. 926
2. Action for restitution Art. 927
3. Action for trespass Art. 928
4. Admissibility and prescription Art. 929
II. Remedies
1. Presumption of ownership Art. 930
2. Presumption of indirect ownership Art. 931
3. Action against the possessor Art. 932
4. Power of disposal and right of restitution a. Entrusted objects Art. 933
b. Stolen or lost chattels Art. 934
c. Cash and bearer securities Art. 935
d. Bad faith
Art. 936
5. Presumption of title to land Art. 937
III. Liability
1. Possessor in good faith a. Use Art. 938
b. Indemnity
Art. 939
2. Possession in bad faith Art. 940
IV. Adverse possession Art. 941
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Titel Twenty-Five: The Land Register A. Organisation
I. Constituent parts 1. In general
Art. 942
2. Registered data a. Object Art. 943
b. Exceptions
Art. 944
3. Registers a. Main Register Art. 945
b. Folio
Art. 946
c. Joint folio
Art. 947
d. Journal, supporting documents Art. 948
4. Implementing ordinances a. In general Art. 949
b. For electronic registers Art. 949a
5. Official cadastral survey Art. 950
II. Keeping the register 1. Districts a. Allocation to districts Art. 951
b. Land straddling more than one district Art. 952
2. Land registries
Art. 953
3. Fees
Art. 954
III. Liability
Art. 955
IV. Administrative supervision Art. 956
V. Legal protection 1. Right of appeal
Art. 956a
2. Appeal proceedings Art. 956b
Art.
957
B. Registration
I. Land register entries 1. Ownership and rights in rem Art. 958
2. Priority notices a. Personal rights Art. 959
b. Restrictions on powers of disposal Art. 960
c. Provisional entries Art. 961
d. Entry of subordinate rights Art. 961a
II. Noting
1. Restrictions under public law Art. 962
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2. Of representatives Art. 962a
III. Requirements for entry 1. Applications a. For an entry Art. 963
b. For a deletion
Art. 964
2. Authority a. Valid proof of authority Art. 965
b. Completion of application Art. 966
IV. Manner of entry 1. In general
Art. 967
2. For easements
Art. 968
V. Duty to notify
Art. 969
C. Public nature of land register I. Information and right of consultation Art. 970
II. Publication
Art. 970a
D. Effect
I. Need for an entry Art. 971
II. Effect of entry 1. In general
Art. 972
2. In relation to third parties acting in good faith Art. 973
3. In relation to third parties acting in bad faith Art. 974
E. Deletion and amendment of entries I. Revision
1. On the division of property Art. 974a
2. In the case of the consolidation of parcels of land Art. 974b
II. Unwarranted entries Art. 975
III. Simplified deletion 1. Clearly insignificant entries Art. 976
2. Other entries a. In general Art. 976a
b. On objection
Art. 976b
3. Public revision procedure Art. 976c
IV. Corrections
Art. 977
Final Title: Commencement and Implementing Provisions Chapter One: Application of Former and New Law A. General provisions
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I. General rule of non-retroactive effect Art. 1
II. Retroactive effect 1. Public policy and good morals Art. 2
2. Relationships defined by law Art. 3
3. Non-vested rights Art. 4
B. Law of persons
I. Capacity to act
Art. 5
II. Presumed death
Art. 6
IIa. Central civil register database Art. 6a
III. Legal entities 1. In general
Art. 6b
2. Accounting and auditors Art. 6c
C. Family law
I. Marriage
Art. 7
Ibis. Divorce
1. Principle
Art. 7a
2. Pending divorce proceedings Art. 7b
3. Period of separation for pending divorce proceedings Art. 7c
4. Occupational pension Art. 7d
5. Conversion of existing pensions Art. 7e
Iter. Effects the marriage in general 1. Principle
Art. 8
2. Surname
Art. 8a
3. Citizenship
Art. 8b
II. Marital property law applicable to marriages contracted before 1 January 1912 Art. 9
IIbis. Marital property law applicable to marriages contracted after 1 January 1912 1. In general
Art. 9a
2. Change from a union of property to participation in acquired property a. Change to the bodies of assets Art. 9b
b. Preferential right Art. 9c
c. Division of marital property under the new law Art. 9d
3. Retention of the union of property regime Art. 9e
4. Retention of separation of property by operation of law or by court order Art. 9f
5. Marital agreement a. In general Art. 10
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b. Legal effect in relation to third parties Art. 10a
c. Application of the new law Art. 10b
d. Contractual separation of property according to previous law Art.
10c
e. Marital agreements concluded with a view to the new law coming into force Art. 10d
f. Register of marital property Art. 10e
6. Repayment of debts in the case of separation of assets under the law of marital property Art. 11
7. Protection of creditors Art. 11a
III. The parent-child relationship in general Art. 12
IIIbis. Adoption
1. Continuation of the previous law Art. 12a
2. Application of the new law Art. 12b
3. Adoption of adults or wards of court Art. 12c
4. Adoption agencies Art. 12cbis
IIIter. Contesting a declaration of legitimacy Art. 12d
IV. Paternity actions 1. Pending actions
Art. 13
2. New actions
Art. 13a
IVbis. Time limit for declaring or challenging the parent-child relationship Art.
13b
IVter. Maintenance contributions 1. Existing maintenance titles 2. Pending proceedings Art. 13c
IVquater. Name of the child Art. 13d
V. Adult protection 1. Existing measures
Art. 14
2. Pending proceedings Art. 14a
D. Succession law
I. Heirs and succession Art. 15
II. Testamentary dispositions Art. 16
E. Property law
I. Rights in rem in general Art. 17
II. Right to entry in the land register Art. 18
III. Adverse possession Art. 19
IV. Special rights of ownership 1. Trees on another person's land Art. 20
2. Condominium
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a. Original
Art. 20bis
b. Converted
Art. 20ter
c. Correction of the land registers Art. 20quater
V. Easements
Art. 21
VI. Mortgage rights 1. Recognition of the existing document of title Art. 22
2. Creation of liens Art. 23
3. Repayment of securities Art. 24
4. Extent of liability under the lien Art. 25
5. Rights and obligations from the mortgage a. In general Art. 26
b. Rights to security Art. 27
c. Termination, transfer Art. 28
6. Ranking
Art. 29
7. Ranking positions Art. 30
8. …
Art. 31 and 32
9. Equal status of previous forms of charge with those under the new law Art. 33
10. Continued application of previous law to existing forms of charge Art. 33a
11. Conversion the form of the mortgage certificate Art. 33b
VII. Charges on chattels 1. Provisions on form Art. 34
2. Effect
Art. 35
VIII. Special lien
Art. 36
IX. Possession
Art. 37
X. Land register
1. Establishment of the land register Art. 38
2. Official cadastral survey a. … Art. 39
b. Relation to the land register Art. 40
c. Time schedule
Art. 41
Art.
42
3. Registration of rights in rem a. Procedure Art. 43
b. Consequences of non-registration Art. 44
4. Abolished rights Art. 45
5. Postponement in the introduction of the land register Art. 46
6. Introduction of the property law before the land register Art. 47
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7. Effect of cantonal forms Art. 48
F. Prescription
Art. 49
G. Forms of contract Art. 50
Chapter Two: Introductory and Transitional Provisions A. Repeal of cantonal civil law Art. 51
B. Supplementary cantonal provisions I. Rights and duties of the cantons Art. 52
II. Substitute ordinances Art. 53
C. Designation of competent authorities Art. 54
D. Public deeds
I. In general
Art. 55
II. Electronic copies and legalisations Art. 55a
E. Allocation of water rights Art. 56
F.-H. …
Art. 57
J. Debt enforcement and bankruptcy Art. 58
K. Application of Swiss and foreign law Art. 59
L. Repeal of federal civil law Art. 60
M. Final Provision
Art. 61
Text of the Previous Provisions of Title Six Title Six: Marital Property Lawp