29. Januar 2019

Federal Supreme Court confirms case law on payments on account for ancillary costs

In its ruling 4A_339/2018 of 29 January 2019, the Federal Supreme Court decided that the landlord does not have to inform the tenant when concluding the contract that the payments on account for the ancillary costs will not cover the costs. The point of dispute was in particular whether the landlord had a duty to provide information. The tenants derived the landlord's duty of disclosure from the protection of legitimate expectations under tenancy law and based their argumentation on the principle of culpa in contrahendo as well as on Art. 270 and Art. 257a CO. The tenancy court of Horgen had partially protected the tenants' position, which only recognised an obligation to pay 20% of the payments on account in arrears, and ruled that the tenants only had to pay 30% of the payments on account in arrears. At the same time, it had criticised the previous case law according to which there were no rules on the relationship between payments on account and actual ancillary costs (BGE 132 III 24) and the landlord was not obliged to inform the tenant about the presumed amount of the ancillary costs. According to the rental court of Horgen, the landlord could thus prevent the tenant from challenging the initial rent. The Zurich Higher Court corrected the first-instance decision and ordered the tenants to make a full additional payment. It argued that the tenant could obtain the information needed to contest the initial rent by exercising his rights to information. The Federal Supreme Court confirmed its practice. In order to assume liability under culpa in contrahendo, it was necessary that the landlord had concealed the fact that the payments on account were too low. Because the case in question was a first-time rental, it was questionable whether the landlord had this information. However, according to the Federal Supreme Court, the question could be left open because liability would only have to be examined if it was neither possible nor reasonable for the tenant to inquire with the landlord about the amount of the service charges.

01. Januar 2019

Changes in debt enforcement and bankruptcy law as of 1 January 2019

The following amendments to the Federal Debt Collection and Bankruptcy Act entered into force on 1 January 2019: 

  • The newly created Art. 8a para. 3 lit. d SchKG allows a debtor to request the debt collection office to prove to third parties that there is no knowledge of a debt collection three months after receipt of the payment order. Thereupon, the debt collection office sets a twenty-day deadline for the creditor to provide evidence that he or she had initiated proceedings in time to remove the legal claim. If the creditor fails to provide the aforementioned proof, third parties will not receive any knowledge of the debt collection from the debt collection office. Only if the creditor subsequently provides the proof or has the legal proposal successfully eliminated does the debt collection office bring the corresponding debt collection to the attention of third parties again. 
  • The new version of Art. 73 SchKG grants the debtor the right at any time to have the creditor requested by the debt collection office to submit the evidence of his claim together with an overview of all claims due against the debtor. If the creditor fails to comply with this request, this circumstance will have the same effect as before on the costs incurred in subsequent litigation. 
  • The newly created Art. 85a SchKG allows a debtor to have the court of the place of debt collection determine that the debt does not exist or no longer exists or is deferred at any time and regardless of whether he has filed a legal proposal.
21. September 2018

Whistleblowing to be regulated by law (partial revision of the Code of Obligations)

On 21 September 2018, the Federal Council adopted a dispatch on the partial revision of the Code of Obligations, having already sent the partial revision of the Code of Obligations for consultation on 5 December 2008. Violations of the law and irregularities in the workplace should not be swept under the proverbial carpet, but reported to superiors and authorities. The Federal Council would like to create a clear legal regulation for when reporting these grievances - so-called whistleblowing - is legal. The legal regulation should bring more clarity and legal certainty. In future, whistleblowing will still only be permissible if the report is first made to the employer. Only under certain conditions may the employee send the report to the competent authority (or to the public) without violating the duty of loyalty. The draft revision regulates the requirements in detail and eliminates the uncertainties associated with the notification procedure. The bill also regulates when anonymous reporting is permissible.