Force majeure is an unforeseeable, irresistible and external event that prevents the performance of a contractual obligation. In Swiss law, this concept is anchored primarily in art. 119 CO, which governs non-culpable impossibility of performance. Unlike other legal systems, Swiss law does not use the expression "force majeure" in the Code of Obligations and adopts an approach based on the notion of objective impossibility. PBM Avocats in Geneva and Lausanne advises its clients on the drafting of appropriate contractual clauses and on strategies to adopt in the event of a disruptive event.
Impossibility of Performance under Art. 119 CO
Art. 119 CO provides that an obligation is extinguished when performance has become impossible through circumstances not attributable to the debtor. This provision sets three cumulative conditions for the debtor to be released:
- Impossibility: performance of the obligation is objectively and absolutely impossible, not merely more difficult or more costly;
- Subsequent character: the impossibility arose after the conclusion of the contract; if it pre-existed, art. 20 CO (nullity of contract) applies;
- Non-attributability to the debtor: the impossibility does not result from a fault or negligence of the debtor.
When these three conditions are met, the debtor's obligation is extinguished without indemnity. But in synallagmatic contracts (with reciprocal obligations), art. 119 para. 2 CO provides a symmetrical rule: if a synallagmatic obligation is extinguished for non-culpable impossibility, the corresponding counter-performance is also extinguished. The creditor who has already paid may therefore recover their performance.
The Distinction from Mere Difficulty of Performance
A frequent error is to confuse impossibility (which releases the debtor) with mere difficulty or increased cost (which does not). Under Swiss law:
- If the performance is legally or physically impossible for everyone (destruction of the sold item, statutory prohibition), art. 119 CO applies;
- If the performance is merely more onerous or difficult (rise in raw material prices, logistical difficulties), the debtor remains bound to perform;
- The debtor's bankruptcy or insolvency is not an impossibility within the meaning of art. 119 CO; the debtor remains bound and incurs liability.
Comparison of Systems: Art. 119 CO vs Contractual Clause
| Criterion | Art. 119 CO (statutory) | Contractual FM clause |
|---|---|---|
| Trigger | Absolute objective impossibility | Listed or defined events (more flexible) |
| Effect | Extinction of the obligation | Possible suspension, then termination |
| Notification | No statutory time requirement | Contractual deadline (e.g. 48 hours) |
| Advances | Restitution (unjust enrichment) | Per the clause (whole or pro-rated) |
| Legal certainty | Low (judicial assessment) | High (list of events) |
Drafting an Effective Force Majeure Clause
To address the uncertainty of art. 119 CO, Swiss contractual practice frequently includes a force majeure clause. A well-drafted clause generally contains:
- A definition of force majeure (unforeseeable, unavoidable event beyond the reasonable control of the parties);
- A non-exhaustive list of examples: war, terrorism, riot, natural disaster, epidemic, governmental decision, general strike, embargo;
- An obligation of prompt notification (often 48 to 72 hours) with a description of the event and an estimate of its duration;
- A regime of suspension of obligations for the duration of the event, with corresponding extension of deadlines;
- A right of termination if the event lasts more than a specified period (often 30 to 90 days);
- Clear rules on the restitution of performances already rendered in the event of termination.
Disruptive Events in Switzerland: Some Practical Situations
Contract breach invoking force majeure is common in several sectors:
- Construction: delays due to extreme weather conditions, unforeseen administrative restrictions, material shortages caused by global crises;
- International trade: embargoes, border closures, cessation of maritime transport;
- Events industry: bans on gatherings, natural disasters making it impossible to hold the event;
- IT contracts: major cyberattacks paralyising the service provider's systems.
In each situation, the central question is whether the event was foreseeable at the time of contracting. A contract signed in January 2021, in the midst of the pandemic, cannot invoke the pandemic as an unforeseeable force majeure for obligations contracted at that date.
Frequently Asked Questions on Force Majeure in Swiss Law
Does the COVID-19 pandemic constitute a force majeure event under Swiss law?
The Federal Supreme Court has not yet ruled definitively on this question. Swiss legal doctrine is divided. Some commentators consider that the pandemic and the governmental measures that followed may constitute an unforeseeable event at the time of contracting (for contracts concluded before March 2020), but the impossibility of performance must be absolute to release the debtor. In many cases, performance was not impossible but merely more difficult or costly, which is insufficient under art. 119 CO. Contractual force majeure clauses drafted before the pandemic merit a case-by-case analysis.
What is the difference between subjective and objective impossibility?
Objective impossibility means that no one can perform the obligation (the sold item is destroyed, the law prohibits any delivery). Subjective impossibility means that the specific debtor cannot perform for reasons personal to them (illness, bankruptcy), but another person could have done so. Under Swiss law, art. 119 CO releases the debtor only in cases of objective impossibility. Subjective impossibility remains in principle a fault of the debtor that engages their liability.
Can a contractual force majeure clause provide for effects different from art. 119 CO?
Yes, this is one of the practical purposes of force majeure clauses. The parties may stipulate: a list of events that automatically constitute a force majeure event (epidemic, war, natural disaster, strike, governmental decision); the obligation for the affected party to notify within a specified period; suspension of obligations for the duration of the event (rather than extinction); a right of termination if the event lasts more than a certain number of days. Such clauses avoid disputes over the legal characterisation of the event.
What happens to advance payments already made in the event of force majeure?
In the event of non-culpable impossibility extinguishing the obligations (art. 119 CO), the contract is dissolved and performances already rendered must be returned under the rules of unjust enrichment (art. 62 CO). Advance payments must therefore in principle be restituted, unless part of the performance has already been partially rendered, in which case a pro-rated set-off is made. Restitution may however be complicated if one of the parties is insolvent.
Is hardship (imprévision) recognised under Swiss law?
Swiss law does not recognise a general doctrine of hardship (Wegfall der Geschäftsgrundlage) as in German law or economic necessity. In principle, contracts remain valid even if economic conditions have radically changed since their conclusion. However, the Federal Supreme Court has admitted, in a very restrictive and exceptional manner, that extraordinary unforeseen circumstances may justify judicial adaptation of the contract or termination. Prudent parties insert price adjustment or hardship clauses in their long-term contracts.