70: Untitled Page 55
- Page ID
- 10384
The first attempt to codify civil law in Switzerland was undertaken during the Helvetic Republic. However, with the decline of the Helvetic Republic in 1803, the work on a comprehensive Private Law Code ceased.
In the 19th century, most cantons adopted civil law legislation with the aim of ending legal fragmentation and to achieving legal certainty on a cantonal level. Whereas the French Code Civil of 1804 was used as a model for the (French and Italian speaking) cantons in western and southern Switzerland (Fribourg, Ticino, Vaud, Valais, Neuchâtel, and Geneva), other cantons (amongst others, Bern, Lucerne, Solothurn, and Aargau) based their legislation on the Austrian Civil Law Code. A third group of German-speaking cantons in central and eastern Switzerland managed to, by and large, remain uninfluenced by foreign legislators in their enactment of comprehensive civil law legislation (for instance Zurich). Finally, a last group of central cantons (inter alia, Uri, Schwyz, Glarus, and Appenzell) completely abstained from enacting any comprehensive civil law legislation.1
One influential cantonal codification during this period was that made on behalf of the canton of Zurich by JOHANN CASPAR BLUNTSCHLI, a legal scholar and professor of law in Zurich, Munich, and Heidelberg. He drafted Switzerland’s first independently codified cantonal civil code which entered into force in 1856. BLUNTSCHLI’S work was well-recognised both nationally and internationally and it served as a model for the later codification and harmonisation of Swiss civil law on the federal level.
Figure 1: Johann Caspar Bluntschli (1808–1881)2
However, the Swiss civil law landscape was to remain heterogeneous throughout the second half of the 19th century. Due to their extensive autonomy, the 25 cantons3 (i.e. federal states) retained their legislative independence leading to a variety of civil codes, while there was a total lack of legislation in some cantons. As such, significantly different legal principles in the field of civil law could be applied to different cases depending on the canton at issue. In the 1860s, in the context of this complex landscape, the Swiss Lawyers’ Association called for a unified civil code at the federal level. However, the first attempt to provide the federal legislator with the competence to enact such a code was rejected by both the people and the cantons in 1872, although shortly thereafter, a limited federal competence to pass the federal Code of Obligations of 14 June 1881 was accepted by the people and the cantons.4 Finally, in 1898 the people and the cantons transferred the (non-exclusive) competence regarding civil law matters to the federal legislator.
The Federal Council mandated EUGEN HUBER, a professor of state law, private law and legal history at the Universities of Basel, Halle, and Bern, to draw up a comparative compendium of all existing cantonal civil codes. From 1886 until 1893,5 HUBER published his comparative analysis in four separate volumes.
Figure 2: Eugen Huber (1849–1923)6
Following the comparative analysis, HUBER published the first draft of the Civil Code in 1900. Until 1904, a commission of experts deliberated on the draft. Finally, on 10 December 1907, the Code was adopted by the Federal Assembly: It officially came into force on 1 January 1912.
3. CONTENT7
The Civil Code is comprised of 977 Articles. It also contains, in a “final title”, 251 commencement and implementing provisions which, inter alia, regulate the transitional relationship between this federal Code and its cantonal predecessors.
After the ten introductory Articles which contain general principles of Swiss law (application of the law, good faith, relationship between federal and cantonal law, and rules of evidence), the Civil Code is divided into four parts.
Part 1 (Articles 11–89c) covers the Law of Persons and mainly regulates the legal personality of natural and legal persons, legal capacity as well as the protection of legal personality in case of infringements. It also addresses the issue of the registration of civil status. Another focus of Part 1 is legal persons. The general provisions of Articles 52–59 contain fundamental principles that are universally applicable to all legal persons under Swiss law (such as the separate legal personality of legal persons, their capacity to act and to acquire rights and obligations, their seat, and rules pertaining to their dissolution), while Articles 60–79 specifically address associations and Articles 80–89a deal with foundations. The last two Articles (Articles 89b and 89c) are dedicated to so-called collective assets – i.e. funds raised by way of a public collection for charitable purposes – where no arrangements have been made with regards to the management or use of such funds.
Part 2 is dedicated to Family Law (Articles 90–456). It addresses the marital law and the marital property law. Although Swiss law does not (yet) allow for same-sex marriages, since 2007 the registered partnership between persons of the same sex is regulated in a separate federal law. The family law also contains provisions on kinship and, inter alia, regulates the parent-child relationship. An entire section (Articles 360–456) sets out measures for the protection of adults (including measures for legally incompetent persons and the deputyship) and introduces the instruments of the health care proxy and the living will into Swiss civil law.8
Part 3 of the Civil Code (Articles 457–640) deals with the Law of Succession and is subdivided into provisions relating to heirs, testamentary freedom and testamentary dispositions, executors, the commencement and legal effects of succession as well as the division of the estate.
Part 4 (Articles 641–977) focuses on Property Law. It contains rules regarding ownership in general, land ownership, and ownership of chattel. Part 4 also regulates limited rights in rem (e.g. usufruct and other personal servitudes, right of residence and building rights), charges on immovable property (mortgages and mortgage certificates as personal obligations), and charges on chattel (such as pledges and liens). Swiss property law also contains rules on possession, including the legal definition of possession, rules pertaining to the transfer of possession, and legal remedies in case of interference. The final provisions of Part 4 cover formal and material aspects of the land register.
Figure 3: Structure of the Civil Code
Swiss family law establishes three marital property regimes to govern the ownership of the property: (i) the marital property regime of participation in acquired property (Errungenschaftsbeteiligung), (ii) the community of property (Gütergemeinschaft), and (iii) the separation of property (Gütertrennung). As participation in acquired property constitutes the default, it applies if the spouses do not choose a different regime by marital agreement (either by way of a prenuptial agreement prior to marriage/civil union or by a contract amending an existing matrimonial property regime following marriage/civil union).
The marital property regime of participation in acquired property (Articles 196–220) distinguishes property acquired during the marriage from the individual property belonging to each individual spouse. Consequently, two different types of property can be distinguished, namely the individual assets of the spouses/registered partners and the assets they acquired during the marriage or registered partnership.9
The acquired property under this regime comprises the assets which a spouse acquired for valuable consideration during the marital property regime, in particular:
-proceeds from employment (e.g. salaries);
-benefits received from staff welfare schemes, social security, and social welfare institutions;
-compensation for inability to work;
-income derived from individual property; and
-property acquired to replace or substitute acquired assets.
By operation of law (Article 197), a spouse’s individual property comprises:
-personal belongings used exclusively by that spouse (e.g. jewellery, musical instruments, etc.);
-assets belonging to one spouse as well as donated and inherited property;
-claims for satisfaction; and
-acquisitions substituting or replacing individual assets.
The marital property regime is dissolved (i) through divorce, (ii) on the death of a spouse, or (iii) on the implementation of a different regime. In the case of dissolution of the marital property regime of participation in acquired property, each spouse (or, in case of dissolution upon death, his/her heirs) keeps his or her individual property and the spouses (or the surviving spouse with the deceased spouse’s heirs) settle their debts to one another. The distribution of the property which was acquired during the marriage depends on the surplus or deficit of each spouse’s acquired property, whereby each spouse is entitled to one-half of the surplus of the other spouse.
The marital property regime of community of property comprises two types of property: the individual assets of each spouse and the common assets of the couple. 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 is entitled to one-half of the common assets and may keep his or her own individual assets.
Finally, in the separation of property regime only one type of property exists, namely the individual property of each spouse. Each spouse, within the limits of the law, administers and enjoys the benefits of his or her individual property. If the regime of separation of property is dissolved, each spouse is entitled to his or her individual property.
5. PROHIBITION OF MAINTENANCE FOUNDATIONS AND FEE TAILS
Article 335 I establishes that assets may be tied to a family by means of a family foundation created under the Law of Persons or Inheritance Law (see Article 80 I) to meet the costs of raising, endowing or supporting family members, or for other “similar purposes”. However, the establishment of (new) fee tails (Fideikommiss) is explicitly prohibited (Article 335 II, Article 488 II).10 This prohibition of fee tails aims at preventing the preservation and accumulation of wealth in dynastic family structures.
The Federal Supreme Court follows a strict interpretation of the phrase “similar purposes” contained in Article 335. In a key ruling it held that the establishment of family foundations for maintenance purposes (Unterhaltsstiftungen) is not permissible.11 However, considering the historic will of the legislator at the time of the Civil Code’s enactment, this ruling was neither imperative nor convincing in the light of modern foundation law developments and the generally liberal approach of the Swiss civil law. Perhaps indicating a shift towards a less strict approach, the Federal Supreme Court held in 2009 that Article 335 is not to be considered a so-called loi d’application immédiate preventing the legal recognition of maintenance foundations established under foreign law.12
As a consequence of the freedom to dispose of one’s property as one sees fit inter vivos (Article 641), Swiss inheritance law stipulates the freedom to pass on wealth at death through the means of a will (Article 470 I). Within the numerus clausus of types of testamentary dispositions, the testator may, in principle, freely allocate his property after his death (Article 481 I). The Civil Code stipulates testaments and contracts of succession as the two main types of wills. If the testator decides not to make a will, the Civil Code designates his offspring, spouse, and other family members as statutory heirs who are eligible for a certain quota of the estate (Articles 457–466).
Pursuant to Article 542, an heir must be alive and capable of inheriting at the time of succession. While natural persons can inherit both as statutory and testamentary heirs, legal persons can only be appointed as heirs by way of a testamentary disposition. In certain constellations (for example if a person wilfully and unlawfully caused or attempted to cause the death of the decedent) a person will be regarded as unworthy (i.e. incapable) of inheriting thus excluding such person as statutory and/or testamentary heir (Articles 540 et seq.). By operation of law the excluded person’s issue inherit from the deceased as if the person unworthy to inherit had predeceased the deceased.
Unless the testator has – legitimately – deprived an heir of his or her statutory heirship by way of disinheritance (Articles 477 et seqq., for example where the heir has committed a serious crime against the testator or a person close to the testator), the freedom to make a will is significantly limited by Switzerland’s restrictive regime of forced shares. Under this regime, only the “disposable part” of a testator’s assets can be passed-on at his or her discretion (Article 470 I), while a substantial quota of the testator’s assets is available to the testator’s offspring, spouse, and parents (again, unless the testator can disinherit one or more of the aforementioned persons).13 This is a statutory entitlement. Moreover, the statutory heirs do not simply receive the right to make a claim for payment against the testator’s estate; they become heirs ex lege. Finally, to protect against the possibility of the testator abusively evading the heir’s statutory rights inter vivos, the testator’s freedom to dispose of his or her assets inter vivos is limited by the possibility of an abatement of such transactions after his or her death (Article 527).
Example: At the time of his death the testator, whose spouse had died a couple of years earlier, leaves a daughter and assets of around CHF 1 million. The testator who had always lived with an attitude “to leave the world a better place” had, over a period of three years prior to his death, made various donations of CHF 9 million in total to a charitable institution. In his testament the testator has appointed his daughter as sole heiress. Although the daughter had, from a formal point of view, been appointed as sole heiress, the inter-vivos-donations substantially undermine her compulsory share. Without the deceased’s donations the estate would have amounted to CHF 10 million and the daughter would, from a legal point of view, have been entitled to a compulsory portion of ¾ of the estate (Article 471 I), i.e. CHF 7.5 million. However, in economic terms she only gets CHF 1 million under the testament. According to Article 527 III gifts made in the last five years before the deceased’s death are subject to abatement. As a result, the daughter can demand CHF 6.5 million from the donee (i.e. the charitable institution) to fully restore her compulsory portion of the heritage.
Another key characteristic of Swiss inheritance law is the principle of eo ipso acquisition of an estate through universal succession (Article 560). Upon the death of the deceased, the estate in its entirety vests ex lege in the heirs. According to the eo ipso acquisition, the heirs acquire all of the deceased’s assets and debts automatically and without a requirement for any formal act from the heirs and/or any administrative or judicial body. As a result of the principle of universal succession the deceased’s claims, rights of ownership, limited rights in rem, and rights of possession automatically pass to the heirs while the debts of the deceased become the personal debts of the heirs. The principle applies to both statutory and testamentary heirs. In order to protect heirs from receiving unwanted or over-indebted/insolvent estates, every heir has the right to renounce the inheritance within three months after he/she learned of the death of the deceased (Article 567). In addition, there is a legal presumption in favour of renunciation in case of insolvent estates (Article 566).
1PETER TUOR/BERNHARD SCHNYDER/JÖRG SCHMID/ALEXANDRA JUNGO, Das Schweizerische Zivilgesetzbuch, 14th edition, Zurich 2015, § 1 n. 2 et seqq.
2Source: Wikipedia, with reference to: Reproduction from Zurich – Geschichte Kultur Wirtschaft. Gebrüder Fretz, Zurich 1932 (https://perma.cc/5KNN-XFGQ).
3Today, there are 26 cantons within the Swiss confederation. This has been the case since 1979 when the canton of Jura seceded from the canton of Bern by popular vote.
4As a matter of substantive law, the Code of Obligations – although adopted earlier – is the fifth part of the Civil Code. However, the Code of Obligations formally and in terms of general use is considered a distinct codification with a separate Article numbering. Therefore, this chapter does not address the Code of Obligations and its underlying principles (for details on the Code of Obligations see the Chapter Law of Obligations, pp. 305).
5Notably, HUBER’S assistance was mandated several years before the referendum in 1898 took place which granted the federal legislator the competence to codify civil law. This was also the situation with the Criminal Code: although the assistance of CARL STOOSS was mandated in 1892, the legislative competence was not granted to the federation until 1898. The most probable explanation behind this is that the Federal Council was fairly confident that the referendum would pass and was merely a formality; thus they wanted to push the project immediately; see for details on the Criminal Code the Chapter on Criminal Law, pp. 369.
6Source: Wikipedia (https://perma.cc/EQ7T-E2UV).
7In the following text, where Articles are mentioned without referencing their source of law, they are located in the Swiss Civil Code of 10 December 1907, SR 210; see for an English version of the Civil Code www.admin.ch (https://perma.cc/DV8N-FFT2).
8The rules pertaining to the protection of minors and adults, which completely overhauled the former custodianship law, entered into force on 1 January 2013.
9By default, registered partners live under the property regime of separation of property, see Article 18 of the Federal Act on Registered Partnership for Same Sex Couples of 18 June 2004, SR. 211.231. However, registered partners can opt-in and declare applicable the principles of the regime of participation in acquired property, by way of a property agreement.
10Fee tails in civil law jurisdictions were a way of connecting assets to a certain family over generations by bequeathing them from father to, traditionally, eldest son thereby, preventing desegregation of the family assets (e.g. lands, castles, etc.). Nowadays common-law trusts and, in some jurisdictions, family foundations can serve similar purposes.
11BGE 71 I 265.
12BGE 135 III 614.
13Currently, a draft legislation proposes abolishing the compulsory portion of the parents and reducing the offspring’s compulsory portion from ¾ to ½ of their statutory share.