Non-contractual civil liability — known as aquilian liability — is governed primarily by articles 41 to 61 of the Code of Obligations (CO). It enables a person who has suffered loss caused by a third party, outside any contractual relationship, to obtain compensation through the courts. The general regime of art. 41 CO coexists with a series of special regimes based on causation (employer liability, building owner liability, motor vehicle keeper liability, product liability) that allocate the burden of proof and grounds for exoneration differently.
Conditions for aquilian liability (art. 41 CO)
Art. 41 para. 1 CO provides that a person who unlawfully causes damage to another, whether intentionally or through negligence or carelessness, is obliged to make reparation. Four cumulative conditions must be satisfied:
- An unlawful act: conduct contrary to the legal order (violation of a rule of law or infringement of an absolute right)
- Fault: intent or negligence attributable to the author
- Damage: financial loss or infringement of personality interests
- Causal link: natural and adequate connection between the unlawful act and the damage
The absence of any one of these conditions is sufficient to exclude any obligation to make reparation under art. 41 CO.
The unlawful act
Unlawfulness may arise from two distinct sources:
- The violation of a rule of conduct imposed by a statutory or regulatory provision (e.g. road traffic rules, workplace safety standards, provisions of criminal law).
- The infringement of an absolute right of another: bodily integrity, life, property, personality rights protected by art. 28 et seq. CC. In such cases, the infringement itself is sufficient to establish unlawfulness without the need to identify a specific protective norm.
By contrast, mere infringement of a purely financial interest (without violation of a protective norm) is not sufficient to establish unlawfulness within the meaning of art. 41 CO.
Fault (intent or negligence)
Fault is assessed objectively: the author's conduct is compared with that which a reasonable and diligent person would have adopted in the same circumstances. It may take two forms:
- Intent (dolus): the author desired the unlawful act and its harmful consequences, or accepted them (conditional intent).
- Negligence (culpa): the author failed to observe the degree of care required by the circumstances, without having desired the damage.
Tortious capacity is a prerequisite: under art. 41 para. 2 CO, a person who lacks capacity for discernment at the time of the harmful act is not liable to make reparation, unless that incapacity is attributable to them (e.g. voluntary intoxication). Young children and persons deprived of capacity for discernment cannot in principle commit fault within the meaning of that provision.
Compensable damage
Damage is defined as the involuntary reduction of a person's net assets. It corresponds to the difference between the victim's current financial situation and the situation they would be in had the harmful event not occurred (difference method).
| Type of damage | Description | Examples |
|---|---|---|
| Financial damage — actual loss (damnum emergens) | Direct reduction of assets | Medical expenses, vehicle repairs, destruction of property |
| Financial damage — lost profit (lucrum cessans) | Benefit of which the victim was deprived | Loss of earnings, commercial loss, incapacity for work |
| Bodily injury (art. 46 CO) | Loss arising from physical or psychological injury | Treatment costs, loss of earning capacity, rehabilitation costs |
| Death (art. 45 CO) | Loss suffered by relatives and costs consequent on death | Funeral expenses, loss of financial support to dependants |
| Moral prejudice (art. 47 and 49 CO) | Physical or psychological suffering, serious infringement of personality | Chronic pain, trauma, damage to honour or reputation |
The causal link (natural and adequate)
The causal link between the unlawful act and the damage must be established at two levels:
- Natural causation: the unlawful act is a sine qua non condition of the damage — but for that act, the damage would not have occurred as it did.
- Adequate causation: according to the ordinary course of events and general life experience, the unlawful act was apt to bring about damage of the kind that occurred. This criterion allows entirely unforeseeable or extraordinary consequences to be excluded.
Where multiple causes concur (the unlawful act combines with a pre-existing condition or an independent event), the court assesses the extent of the causal link taking into account all the circumstances.
Grounds for exoneration
Even when all four conditions of art. 41 CO are met, the author may invoke grounds that limit or extinguish the obligation to make reparation:
- Force majeure: an unforeseeable, irresistible event external to the author that breaks the causal link.
- Contributory fault of the victim (art. 44 CO): where the victim contributed to the occurrence or aggravation of their own damage through their own negligence, the court may reduce the damages proportionately, or even deny them entirely if the victim's fault is the predominant cause of the damage.
- Third party's fault: if a third party, by their own wrongful conduct, broke or interrupted the adequate causal link between the author's act and the damage, the author's liability may be reduced or excluded.
- Victim's consent: in certain cases, a victim who validly consented to the harm (e.g. participation in a risky sport) may have that consent raised against them, within the limits set by art. 27 CC on personality rights.
Assessment and compensation of damage (art. 42–47 CO)
Articles 42 to 47 CO set out the rules for assessing and compensating damage:
- Art. 42 CO — proof of damage: the victim must prove their damage. Where the exact amount cannot be established, the court determines it equitably, taking into account the ordinary course of events. This rule eases the burden of proof where the existence of damage is certain in principle but difficult to quantify precisely.
- Art. 43 CO — fixing of damages: the court has broad discretion to determine the form and extent of reparation, having regard to the circumstances and the gravity of the fault. Reparation may take the form of an annuity or a lump sum.
- Art. 44 CO — reduction of damages: the court may reduce damages where the victim is contributorily at fault, or where the person liable is in straitened financial circumstances.
- Art. 45 CO — death: funeral expenses, loss consequent on the withdrawal of the support provided to dependants by the deceased, and prior treatment costs are compensable.
- Art. 46 CO — bodily injury: costs of recovery and rehabilitation, loss of earnings, and future reduction of working capacity are compensable.
- Art. 47 CO — moral prejudice for bodily injury or death: the court may award a reasonable indemnity as moral reparation to the victim or, in the event of death, to their relatives, where the circumstances so warrant (gravity of the harm, suffering endured).
The indemnity for moral prejudice in cases of serious infringement of personality rights (other than bodily injury) is governed by art. 49 CO. Employer liability for the acts of auxiliary persons is governed by art. 55 CO, which provides for simple causal liability. Building owner liability for construction or maintenance defects is governed by art. 58 CO.
Limitation of the action (art. 60 CO)
Art. 60 CO sets the periods within which a civil liability action must be brought, failing which the claim is extinguished:
| Type of period | Duration | Starting point | Notes |
|---|---|---|---|
| Relative period | 3 years | Day the victim became aware of the damage and the person responsible | Actual knowledge required; mere possibility of knowledge is not sufficient |
| Absolute period (non-bodily damage) | 10 years | Day of the harmful act | Independent of the victim's knowledge |
| Absolute period (bodily injury) | 20 years | Day of the harmful act or conduct | Since the amendment in force from 1 January 2020; applicable to physical or psychological injury |
| Related criminal offence | According to criminal limitation if longer | According to the applicable rules of criminal law | Art. 60 para. 2 CO: the longer criminal limitation period benefits the civil action |
For a detailed presentation of the rules on limitation in civil matters, see the page Statute of limitations in Switzerland.
Special civil liability regimes
Several special regimes derogate from the fault principle of art. 41 CO:
- Art. 55 CO — employer liability: the employer is liable for damage caused by employees in the exercise of their duties, unless the employer proves that all precautions warranted by the circumstances were taken to avoid damage of that kind (simple causal liability with possible exoneration).
- Art. 58 CO — building owner liability: the owner of a building or other structure is liable for damage caused by construction or maintenance defects, unless the required diligence is proved.
- Art. 56 CO — animal keeper liability: the keeper of an animal is liable for damage caused by it, unless they prove that all necessary precautions were taken.
- LRFP — product liability: the Federal Product Liability Act (LRFP) establishes causal liability of the manufacturer for damage caused by a defective product, without the victim needing to prove fault. It covers bodily injury and damage to private property above a deductible of CHF 900.
Difference from contractual liability (art. 97 CO)
| Criterion | Aquilian liability (art. 41 CO) | Contractual liability (art. 97 CO) |
|---|---|---|
| Prerequisite | No contract required | Existence of a valid contract |
| Burden of proof of fault | Borne by the victim (claimant) | Presumed; debtor must exonerate themselves |
| Proof of non-performance | Victim proves the unlawful act | Creditor proves non-performance |
| Limitation | 3 years relative / 10 or 20 years absolute (art. 60 CO) | 10 years as a general rule (art. 127 CO), unless special provisions apply |
| Moral prejudice | Possible under art. 47 and 49 CO | Admitted restrictively in contractual matters |
| Liability for auxiliaries | Art. 55 CO (employer's simple causal liability) | Art. 101 CO (liability for auxiliaries, without possibility of exoneration) |
Where both regimes are concurrently applicable (e.g. a doctor commits an error that is both contractual and tortious), the victim may in principle invoke one or the other, or combine them, within the limits set by case law on the concurrence of actions. For more information on contract law, see the page Contract law in Switzerland.
Frequently asked questions on civil liability in Switzerland
What is the difference between contractual and non-contractual liability?
Contractual liability (art. 97 CO) presupposes the existence of a valid contract between the parties: the debtor who fails to perform is presumed at fault, and the creditor need only prove non-performance and the damage. Non-contractual or aquilian liability (art. 41 CO) applies outside any contractual relationship: the victim must personally prove all four cumulative conditions — unlawful act, fault, damage, and causal link. Both regimes may coexist when the parties are bound by a contract but the harmful act also constitutes a tort (concurrence of actions). The choice of legal basis may affect limitation periods and the burden of proof.
What is the limitation period for a civil liability claim?
Art. 60 CO distinguishes two periods. The relative period is three years from the day the victim became aware of the damage and the person responsible. The absolute period is in principle ten years from the harmful act. Since the amendment that entered into force on 1 January 2020, this absolute period is extended to twenty years for bodily injury (damage to physical or mental integrity) — it runs from the day of the harmful act or conduct, regardless of the victim's knowledge. Where the harmful act also constitutes a criminal offence subject to a longer limitation period, that longer period applies to the civil action as well (art. 60 para. 2 CO).
Is fault always required to establish civil liability?
No. The regime of art. 41 CO — fault-based liability — is the general rule, but the law provides for numerous forms of causal liability that allow compensation without proof of fault. A distinction is drawn between simple causal liability (where the defendant may be exonerated by proving that no duty of care was breached, such as employer liability under art. 55 CO or building owner liability under art. 58 CO) and aggravated or strict causal liability (where the defendant may only be exonerated by proving an external cause: force majeure, victim's fault, or a third party's fault — e.g. the liability of the motor vehicle keeper under the Road Traffic Act). The Federal Product Liability Act (LRFP) also establishes causal liability in favour of persons harmed by a defective product.
Can damages and moral prejudice be claimed simultaneously?
Yes, the two heads of compensation are distinct and may be combined. Damages (art. 42–46 CO) are intended to compensate a measurable financial loss: lost income, medical expenses, reduction in the market value of an asset. Moral prejudice (art. 47 CO for bodily injury or death; art. 49 CO for serious infringement of personality rights) compensates physical or psychological suffering, harm to honour or reputation, which cannot be precisely quantified in money. The court fixes the moral prejudice on the basis of equity, taking into account the seriousness of the harm and the degree of fault. Obtaining damages therefore does not preclude simultaneously claiming an indemnity for moral prejudice, provided the conditions specific to each head are met.
Who bears the burden of proof in civil liability matters?
In aquilian liability (art. 41 CO), it is in principle the victim (the claimant) who must prove all four conditions: the unlawful act, the defendant's fault, the damage suffered, and the causal link. Regarding the damage, art. 42 para. 2 CO softens this rule: where the exact amount cannot be established, the court determines it on equitable grounds, taking into account the ordinary course of events. In contractual liability (art. 97 CO), the position is reversed: it is the debtor who must prove that no fault is attributable to them. Under simple causal liability regimes (art. 55, 58 CO), fault is presumed and it is for the defendant to rebut that presumption by proving that all required precautions were taken.