General terms and conditions of sale or service (GTC) constitute the standard contractual basis on which millions of commercial transactions in Switzerland rest each year. Well-drafted, they protect the company against legal risks and clarify the rights and obligations of the parties. Poorly drafted, they may be partially or entirely unenforceable. PBM Avocats, in Geneva and Lausanne, assists companies in drafting, reviewing and defending their general terms and conditions.
The Legal Regime of General Terms and Conditions in Swiss Law
Swiss law does not have a specific law on general terms and conditions. Their regime results from the combination of several sources:
- The general rules of the law of obligations (art. 1 et seq. CO) on the formation of contracts and interpretation;
- The Federal Act against Unfair Competition (UCA/LCD), notably art. 8 on abusive clauses in contracts with consumers;
- The Federal Supreme Court's case law, which has developed specific judicially created rules (rule of unusualness, rule of ambiguous clause, principle of interpretation contra proferentem);
- The mandatory provisions specific to certain types of contracts (lease, employment, etc.) that cannot be set aside by GTC.
The Conditions for Incorporation of GTC into the Contract
To be enforceable against the other party, general terms and conditions must be validly incorporated into the contract. The Federal Supreme Court sets three cumulative requirements:
- Express reference to the GTC upon conclusion of the contract (mention on the offer, order form, quotation);
- Effective possibility to read the full text before contracting (provision of the document, link to the website);
- Acceptance of the GTC, at least tacit (signature of the document that mentions them, use of the service after having read them).
GTC transmitted after the conclusion of the contract (on the invoice, delivery note) are in principle not incorporated. Similarly, a mere reference to the existence of GTC without the possibility of consulting them is insufficient.
The Rule of Unusualness (Ungewöhnlichkeitsregel)
The rule of unusualness is one of the most important protections against the abuse of general terms and conditions in Swiss law. According to this judicially created rule, a clause is deemed not incorporated into the contract if it:
- Is objectively unusual, i.e., departs significantly from the legal model or from usual practice in the sector;
- Could reasonably surprise the other contracting party who could not have expected it;
- Is significantly unfavourable to them.
The rule of unusualness applies even if the GTC have been formally accepted. It functions as an automatic protection mechanism that the weaker party does not have to invoke explicitly. Examples of unusual clauses recognised by Swiss courts: very short forfeiture periods for complaints, unusual risk transfer, jurisdiction clause in a very distant location, unilateral price modification after conclusion of the contract.
Art. 8 UCA/LCD and the Control of Abusive Clauses
Since the 2012 revision, art. 8 UCA/LCD prohibits, in relations with consumers, the use of general terms and conditions that provide, to the detriment of consumers, a notable and unjustified disproportion between the rights and obligations arising from the contract. This provision applies to contracts concluded between a company and a consumer (B2C), but not to B2B contracts. Clauses rendered null and void under art. 8 UCA/LCD include notably:
| Type of Abusive Clause | Example |
|---|---|
| Total exclusion of liability | Exclusion of warranty for all defects, even intentional ones |
| Restriction of the consumer's legal rights | Reduction of the warranty period below the legal minimum |
| Unilateral modification of conditions | Supplier's right to modify prices without notice |
| Hidden charges | Processing fees not mentioned at the time of purchase |
| Abusive tacit renewal | Automatic renewal with very short termination notice period |
General Terms and Conditions and E-Commerce
In the context of e-commerce, Swiss law imposes specific requirements. Art. 40a to 40f CO, applicable to contracts concluded at a distance or off-premises, provide for a 14-day right of withdrawal in favour of the consumer, the conditions of which cannot be worsened by GTC. The seller is required to clearly inform the consumer of this right before the conclusion of the contract.
On the technical level, online GTC must be accessible via a permanent clickable link, written in a comprehensible language, and kept in a manner allowing their reproduction. Acceptance by a separate checkbox (opt-in) is preferable to a simple sentence in small print. For questions relating to consumer protection and legal warranties, the CO provisions apply by operation of law.
Rules of Interpretation of GTC
In the event of ambiguity of a GTC clause, the Swiss court applies the rule in dubio contra proferentem: doubt benefits the party that did not draft the GTC. This rule discourages obscure or equivocal drafting. GTC are also interpreted in the light of the principle of good faith (art. 2 CC) and the economic purpose of the contract. Engaging a specialist lawyer for initial drafting is an investment that prevents costly disputes.
Frequently Asked Questions About General Terms and Conditions in Switzerland
How are general terms and conditions incorporated into a contract under Swiss law?
The incorporation of general terms and conditions (GTC) into a contract requires that the other contracting party had a real opportunity to know them and accepted them. The Federal Supreme Court requires a clear reference to the GTC upon conclusion of the contract and an effective possibility to consult them. In online contracts, the GTC must be accessible via a clickable link and acceptance must be active (checkbox). GTC sent only after the conclusion of the contract are in principle not incorporated.
What is the rule of unusualness and how does it apply?
The rule of unusualness is a judicially created rule of the Federal Supreme Court. It stipulates that GTC clauses that are unusual, excessively unfavourable or surprising for the other party — and that a layperson could not reasonably have anticipated — are deemed not incorporated into the contract, even if they were formally accepted. This rule aims to protect the weaker party against clauses hidden in long and complex texts.
Does the UCA/LCD prohibit certain clauses in general terms and conditions?
Yes. The Federal Act against Unfair Competition (UCA/LCD) notably prohibits clauses that deceive the consumer about their legal rights, that provide for hidden excessive prices, or that create a significant imbalance between the rights and obligations of the parties to the detriment of the consumer. Art. 8 UCA/LCD, revised in 2012, introduces a content check for GTC used with consumers and renders significantly disadvantageous clauses null and void.
What are the specific rules for GTC in Swiss e-commerce?
For contracts concluded online, art. 3 UCA/LCD requires transparency on prices (all taxes included), the seller's identity and contractual terms. Art. 40a et seq. CO provides for a 14-day right of withdrawal for contracts concluded at a distance or off-premises, the conditions of which cannot be restricted by GTC. GTC must also comply with the Federal Act on Data Protection (FADP/LPD) with regard to the processing of personal data.
What to do if two companies each have their own contradictory general terms and conditions?
This is the situation known as the 'battle of forms'. In Swiss law, the solution is not expressly regulated by law. Doctrine and case law generally apply the 'knock-out' theory: the contradictory clauses of the two sets of GTC cancel each other out and the contract is governed by default law (supplementary legal rules). It is therefore crucial to specify in the GTC that you do not accept the other party's GTC, and to obtain explicit confirmation.