Swiss contract law in international commercial arbitration : a commentary / Christoph Müller ; with Sabrina Pearson-Wenger.

Format:

Book

Author/Creator:

Müller, Christoph, 1969- author.

Pearson-Wenger, Sabrina, author.

Language:

English

Subjects (All):

Contracts--Switzerland.

Contracts.

International commercial arbitration.

Physical Description:

1 online resource (xxxiv, 736 pages) : digital, PDF file(s).

Edition:

First edition.

Place of Publication:

Cambridge : Cambridge University Press, 2023.

Summary:

This book provides a systematic presentation of the most important commercial contracts under Swiss law, i.e., the contract of sale, the contract for work and services, the simple mandate contract, and the commercial agency contract, as well as the licence agreement, the exclusive distribution agreement, and the settlement agreement. The book also contains an in-depth introduction of the Swiss law of obligations, covering topics such as the fundamental principles of contract law, the obligation (as the effect of the contract), the formation of contracts, contract interpretation, validity of contracts, agency, general terms and conditions, and breach of contract. After English law, Swiss law is deemed to be the most attractive law applicable to the parties' contract in an international context. At the same time, English is usually chosen as the language of the arbitration proceedings. This book will therefore be an indispensable resource for all English-speaking lawyers interested in international commercial arbitration.

Contents:

Cover

Half-title

Title page

Copyright information

Contents

List of Figures

Acknowledgements

List of Abbreviations

Part I Introduction

1 The Importance of Swiss Law in International Arbitration

Select Bibliography

2 Introduction to Swiss Law in General

I Switzerland as a Federal State

II Judicial System

A Federal Courts

B Cantonal Courts

C Civil Law Disputes

III Sources of Law

A Statutory Law

B Case Law

C Legal Doctrine

3 Introduction to Swiss Contract Law

I Code of Obligations as the Main Source of Law

II Fundamental Principles of Contract Law

A Freedom of Contract

1 Principle

2 Aspects

a Freedom to Enter into a Contract and to Choose a Partner at Will

b Freedom of Content

c Freedom of Form

d Freedom to Modify and to Terminate the Contract

3 Mandatory and Optional Statutory Provisions

a Principle

b Mandatory Provisions

c Optional Provisions

B Good Faith

C Prohibition of an Abuse of Right

D Burden of Proof

III Obligation (as the Effect of the Contract)

A Definition

1 Duty to Fulfil and Right to Claim

2 Obligation as an Inter Partes Right

B Origins of Obligations

2 Obligations Created by Statute

3 Obligations Created by Case Law

IV Formation of Contracts

A Pre-contractual Liability

2 Conditions

b Violation of the Principle of Good Faith (in Business Transactions)

3 Consequences of Pre-contractual Liability

B Offer and Acceptance

2 Expression of Intent

3 Offer

4 Acceptance

5 Receipt of the Offer and Acceptance

6 Withdrawal of Offer and Acceptance

7 Time of Conclusion of the Contract

8 Congruency of Offer and Acceptance

9 Interpretation of Expressions of Intent

V Interpreting Contracts.

A Purpose

B Means of Interpretation

1 Wording of the Contract

2 All Relevant Circumstances

3 Context

4 History and Genesis of the Contract

5 Parties' Interests and Purpose of the Contract

6 Trade Usages

7 Parties' Conduct after the Conclusion of the Contract

C Maxims of Interpretation

1 Necessity of Interpretation

2 Priority of Clear Wording

3 Interpretation in Accordance with Good Faith

4 Contract Conclusion as the Relevant Point in Time

5 Interpretation as a Whole

6 Contra Proferentem Rule

7 Other Interpretation Maxims in Cases of Ambiguity

VI Validity of Contracts

A Principle

B Validity with Respect to Form

1 Principle of Freedom of Form

2 Statutory Formal Requirements

a Purpose of Formal Requirements

b Types of Formal Requirements

c Scope of the Formal Requirements

3 Consequences of a Violation of Formal Requirements

a Principle of Nullity

b Mitigation through the Prohibition of an Abuse of Rights

4 Formal Requirements Contractually Agreed Upon

C Validity with Respect to Content

1 Principle of Freedom of Content

2 Limits to the Freedom of Content

a Unlawfulness

b Immorality

c Impossibility

d Unfair Advantage

3 Consequences of a Violation of the Limits to the Freedom of Content

a Principle of Nullity and Its Limits

b Partial Nullity

D Lack of Consent

2 Mistake

b Mistake in Declaration

c Mistake Concerning the Basis for the Conclusion of the Contract

d Motive Mistake

e Calculation Mistake

f Invoking Mistake

3 Wilful Deception

b Conditions

c Invoking Wilful Deception

4 Duress

c Invoking Duress

5 Consequences of a Lack of Consent

a Invalidation of the Contract

b Restitution

c Liability for Damages

VII Agency.

A Principle

B Direct and Indirect Agency

C Conditions

2 Authority to Act for Someone Else

b Power of Attorney

3 Acting in the Name of Someone Else

4 Agency without Authority

VIII General Terms and Conditions

A Notion and Statutory Regime

B Importance, Purposes and Dangers

C Judicial Control

1 Overview

2 Consensus Control

3 Interpretation Control

4 Content Control

IX Categories of Contracts

A Criteria for Distinction

1 Classification Based on the Characteristic Obligation

2 Classification Based on the Existence of a Specific Statutory Regime

3 Classification Based on the Number of Obligations Undertaken

4 Classification Based on the Relationship of the Obligations to Time

5 Classification Based on the Consequences of the Conclusion of the Contract

6 Classification Based on the Existence of Consideration

B Consumer Contracts

X Performance of the Contract

A Overview

B Parties Performing the Obligation

1 No Personal Performance

2 Several Debtors

3 Several Creditors

C Content of the Obligation to Perform

D Place of Performance

E Time of Performance

F Adaptation of the Contract to Changed Circumstances

2 Contractual Adjustment Rules

3 Statutory Adjustment Rules

4 Judicial Adjustment

XI Breach of Contract

B Enforcement

C Contractual Liability

a Conditions of Contractual Liability

b Vicarious Liability

c Consequences of Contractual Liability

2 Debtor's Default

a Overview

b Simple Default

c Qualified Default

3 Creditor's Default

c General Consequences

d Debtor's Additional Rights

4 Conventional Modifications of Contractual Liability

b Limitation or Exclusion of Liability Clauses.

XII Extinguishment of Obligations

B Impossibility

3 Consequences

C Set-off

3 Declaration of Set-off

4 Consequences

D Statute of Limitations

2 Duration of the Limitation Period

3 Starting Point of the Limitation Period

4 Impediment and Suspension of the Limitation Period

5 Interruption of the Limitation Period

6 Waiver of the Statute of Limitations

7 Expiry of the Limitation Period

8 Consequences of the Statute of Limitations

9 Contractual Modifications of the Limitation Period

XIII Assignment of a Claim

B Conditions

C Consequences of the Assignment

D Transfer of a Contract

XIV Assumption of a Debt

B Statutory Regime

Part II Contracts of Disposition

4 Contract of Sale

I The Contract of Sale (in General)

A General Presentation

1 Sources

a Code of Obligations

b Other Sources

2 Notion

a Definition

b Characteristic Elements

c Object Sold

3 Distinctions

a According to the Subject Matter of the Contract

b According to the Aim of the Contract of Sale

c According to When the Payment Is Due

B Formation of the Contract

1 Contracting Parties

2 Conclusion and Validity of the Contract

b Determinability of the Essential Elements

c Form

C Obligations of the Seller

1 Main Obligations

b Modalities of Performance

2 Ancillary Obligations

D Obligations of the Buyer

2 Obligation to Pay the Price

a Notion of the Price

b Amount of the Price

c Modalities of Performance

d Interest

3 Incumbency to Take Delivery of the Object

4 Ancillary Obligations

E Non-performance of the Seller's Obligations

2 Default of the Seller.

a General Regime of the Civil Sale

b Specific Regime for the Commercial Sale

c Calculation of Damages

3 Warranty of Title

b Substantive Conditions

c Procedural Conditions

d Consequences

4 Warranty of Conformity

d Specific Warranty Rights of the Buyer

e Conventional Modifications

F Non-performance of the Buyer's Obligations: Default

2 Specific Regimes

a Cash or Prepayment Sale

b Sale on Credit

3 Calculation of Damages

a Considering the Substitute Purchase

b Considering the (Stock) Market Value

G Passing of the Risk and Benefits

1 Subsequent Impossibility Not Due to the Debtor

2 Criticisable Regime

a Regime of Article 185(1) CO

b Critique

3 Conditions of Application

b Specific Cases

II Sale of Real Property

3 Promise of Sale

B Form: Public Deed

2 Subject Matter of the Public Deed

a Objectively Essential Elements

b Subjectively Essential Elements

3 Sanction for Failure to Observe Requirement of Form

C Warranty of Conformity

2 Specific Rules

a Lack of Conformity with Respect to the Surface Area

b Limitation Period

D Passing of the Risk and Benefits

E Related Concepts

2 Purchase Right Agreement

3 Repurchase Right Agreement

4 Pre-emption Right Agreement

III International Sale of Goods

a Vienna Convention

2 Sphere of Application of the Convention

a Substantive Sphere of Application

b Personal and Territorial Sphere of Application

c Non-mandatory Nature of the Convention

3 Interpretation and Filling of Gaps

a Interpretation

b Filling of Gaps.

B Formation of the Contract.

Notes:

Title from publisher's bibliographic system (viewed on 31 Jul 2023).

Includes bibliographical references and index.

ISBN:

9781108381819

1108381812

9781108383738

1108383734

9781108368667

1108368662

OCLC:

1481785681