Switzerland: Revision Of The Statute Of Limitations

Last Updated: 10 August 2018
Article by Nathalie Voser and Benno Strub
Most Read Contributor in Switzerland, September 2018

On 15 June 2018, the Swiss parliament passed a revision of the statute of limitations. A special category of damages was created, namely personal injuries, to which a relative limitation period of three years and an absolute limitation period of 20 years will generally apply in the future. In addition, after a long legislative history of this revision, only one significant amendment remained, namely the extension of the relative limitation period from one to three years for non-contractual claims and unjust enrichment claims.

1 BACKGROUND AND CORE CONTENT OF THE REVISION

In the mid-1980s, efforts began to comprehensively revise and standardize liability law. However, this undertaking encountered great difficulties. Over the years, a viable consensus only developed for an amendment of the statute of limitations in the field of personal injuries and a few other selective adjustments. The Federal Council therefore submitted a corresponding draft with adjustment proposals to parliament in November 2013.

1.1 STATUTE OF LIMITATIONS FOR PERSONAL INJURIES UNDER EXISTING LAW

1.1.1 NO SPECIAL LIMITATION PERIOD FOR PERSONAL INJURIES

Under current Swiss law, there is no special limitation period for personal injuries. They thus become time-barred after ten years in cases of both contractual and noncontractual liability. In the case of tort liability, the so-called relative period of one year, within which the claim must be asserted in court or at least the limitation period must be interrupted, must also be observed. This limitation period begins on the day on which the injured party becomes aware of the damage and of the person liable for compensation. The absolute limitation period of ten years in tort law begins with the day of the action causing the damage or, in the case of unlawful omissions, with their end.

The current statute of limitations is problematic for those cases in which damages only manifest themselves many years after the action or omission causing the damage (so-called late damages). Thus, cancers of the pleura or peritoneum (mesothelioma) and other asbestos-related diseases have latency periods of 15 to 45 years from the beginning of exposure to asbestos dust. For this reason, under the existing law, a claim for damages in cases with long latency period can become statute-barred before the injured party even knows of the asbestos damage. This also applies to claims for damages arising from the breach of contractual obligations in accordance with the established practice of the Federal Supreme Court.

In the Federal Supreme Court's leading decision ATF 106 II 134 of 1980, the case of a watchmaker who was exposed to ionizing radiation at work in the 1940s and 1950s had to be assessed. Only 18 years after termination of the employment relationship did the health consequences manifest. The worker sued the former employer for damages in 1976. She argued that the employer had failed to take occupational safety measures. The Federal Supreme Court ruled that the ten-year limitation periods in tort and contract law begin to run irrespective of whether the injured party is aware of a claim or not. The Court concluded that in the case of contractual and tortious claims by employees, the ten-year limitation period begins to run when the safety measures incumbent on the employer are omitted, but at the latest at the time of termination of the employment relationship, and therefore considered the claims to be statute-barred.

The Federal Supreme Court did not disregard the fact that it appears strict for the injured party if the absolute statute of limitations becomes effective before they are even aware of their claim and are not at fault for their inactivity. This possible consequence, however, had not escaped the legislature, thus the judge here was not allowed to deviate from the law in order to avoid the statute of limitations in a specific case.

1.2.2 THE MOOR CASE

In recent years, the question of limitation periods has been repeatedly referred to the Federal Supreme Court, in particular in connection with asbestos diseases, but the Federal Supreme Court has confirmed the abovementioned case law in all cases.

Two such decisions in connection with Hans Moor, who died of a mesothelioma, were appealed to the European Court of Human Rights (ECHR) in Strasbourg (Howald Moor et al. v. Switzerland, 52067/10 and 41072/11, the so-called Moor case).

In its decision of 2014, the ECHR considered the application of the statute of limitations under Swiss law in the Moor case to be a violation of the right of access to court. The ECHR took the view that the systematic application of the Swiss statute of limitations to the victims of diseases that cannot be diagnosed until long after the disease-causing events was likely to exclude the persons concerned from the possibility of asserting their claims in court. If it is scientifically proven that a person cannot know that they suffer from a certain disease, this should be taken into consideration when calculating the limitation period.

1.2 "ROUND TABLE": REGULATION OF PHYSICAL LATE DAMAGES FROM ASBESTOS EXPOSURE

While a total revision of liability law was still being pursued, from 2004 onwards there were initiatives in parliament demanding special rules of limitation for claims by asbestos victims. For example, in one of these initiatives concerning personal injuries, a relative period of five years and an absolute period of fifty years were called for.

In response to such initiatives and to the Moor case, the Federal Council set up the "Round Table on Asbestos" in early 2015, at which representatives of insurance companies, industry, administration, trade unions and victims' organizations discussed solutions to support asbestos victims.

Following the agreement reached at the "Round Table on Asbestos", the Foundation compensation fund for asbestos victims (EFA Foundation; www.stiftung-efa.ch) was established in March 2017; the EFA Foundation commenced operating in July 2017. In principle, the compensation fund is intended to compensate damages which are not covered by compulsory occupational accident insurance (SUVA), i.e. in particular damages to persons who suffer or have died from an asbestos-related disease but whose exposure to asbestos cannot be attributed to occupational exposure. The fund also retroactively covers damages caused by a mesothelioma outbreak after 1 January 2006.

1.3 THE NEW ABSOLUTE LIMITATION PERIOD OF 20 YEARS FOR PERSONAL INJURIES

The revision now adopted by the Parliament is based on a preliminary draft from 2011 and the draft from 2013 for a partial revision limited to the statute of limitations of the Swiss Code of Obligations and of various other laws.

The National Council, which first dealt with the bill in September 2014, decided to extend the limitation period for personal injuries to 20 years rather than 30 as proposed by the Federal Council. In December 2015, the Council of States discussed the bill. The Council voted against a special longer limitation period for personal injuries, but supplemented the bill with a retroactive transitional provision in favor of asbestos victims with claims that had already become statute-barred.

Subsequently, in February 2016, the National Council Committee suspended the procedure for the resolution of differences between the Councils, as the Committee wanted to await the discussions on the establishment of a compensation fund for asbestos victims. After the fund's establishment, the National Council Committee requested the abandonment of the revision, but the Council of States Committee opposed this request.

In the parliamentary resolution of differences in the first half of 2018, the Councils finally agreed on the solution by the National Council, i.e. an extension of the limitation period for personal injuries to 20 years without special transitional provisions for cases that have already become statute-barred. The new provision applies to damages arising from both non-contractual and contractual liability (new Articles 60(1bis) and 128a CO).

1.4 INTRODUCTION OF A GENERAL RELATIVE LIMITATION PERIOD OF THREE YEARS FOR PERSONAL INJURIES

For personal injuries, at the same time as the new absolute limitation period of 20 years, the revision introduces an additional relative limitation period of three years for contractual liability. In the future, contractual liability will be split into one liability with and one liability without a relative period, depending on whether it relates to personal injuries or property damages.

The Federal Council's dispatch stated that the "exceptional shortening of the limitation period... seems appropriate and justified".

In the future, the statute of limitations for contractual claims arising from personal injuries that are not late damages will in many cases be in fact shorter than it has been so far.

2 THE OTHER AMENDMENTS I N THE STATUTE OF LIMITATIONS

Besides the controversial extension of the limitation period for personal injuries, the revision also includes other amendments, some of which are described below.

2.1 EXTENSION OF THE RELATIVE PERIOD TO THREE YEARS

Swiss law currently has a relative limitation period of one year in tort and unjust enrichment law. Accordingly, claims for damages or unjust enrichment claims must be asserted within one year from knowledge of the damage and the person liable for damages or from knowledge of the enrichment claim. This limitation period was widely considered too short in doctrine and practice. Also, in other jurisdictions, such periods are usually longer.

The period will now be extended to three years, which should in particular facilitate the out-of-court settlement of liability cases by allowing more time for it. In unjust enrichment law, too, the longer relative period will improve the situation of the creditor, even if the case law has so far interpreted the conditions for assuming effective knowledge of the claim relatively generously in favor of the deprived party.

2.2 ADJUSTMENT OF THE REASONS FOR THE SUSPENSION OF THE LIMITATION PERIOD

Article 134(1) CO contains a catalogue of reasons for which the limitation period does not begin or is suspended, which is now being extended.

In particular, the limitation period will now be suspended "for the duration of settlement discussions, mediation proceedings or other out-of-court settlement proceedings" (no. 8). As the wording of the law states, the methods of dispute resolution listed are not exhaustive, but should include all formal and informal forms of out-of- court dispute resolution. The parties must agree on this suspension of the limitation period in writing.

In addition, the previous provision, according to which the limitation period is suspended as long as a claim "cannot be asserted before a Swiss court", has been adapted. It is now necessary that a claim cannot be asserted "for objective reasons before any court" worldwide, including arbitration tribunals (no. 7).

2.3 OTHER AMENDMENTS

With the revision of the statute of limitations, further provisions will also be amended. In particular, the following amendments are worth mentioning:

  • The injured party now always has an additional threeyear period from the issuance of the first-instance criminal judgment to assert his claims for damages (Article 60(2) CO).
  • The effect of the interruption of the limitation period on joint and several debtors, guarantors and insurers will be partly revised (Article 136 CO).
  • The amendments to Article 141 CO, whose margin title is now "Waiver of the statute of limitations defense", enshrine the case law of the Federal Supreme Court to waive the assertion of the statute of limitations and provide some clarifications. A waiver is possible for a maximum of ten years and, in the future, will be possible only from the moment when the limitation period has begun to run. A special rule applies if the waiver is contained in general terms and conditions.
  • The limitation period for the initiation of claw-back claims is extended from two to three years, beginning after service of the certificate of shortfall, the opening of bankruptcy proceedings, or the confirmation of a composition agreement with assignment of assets (Article 292 of the Swiss Debt Enforcement and Bankruptcy Act).

3 CONCLUSION AND ENTRY INTO FORCE

The extension of the limitation period for the assertion of claims for damages from personal injuries both under contract and under tort to 20 years will be assessed differently depending on the interests involved. Apart from that, the revision of the statute of limitations brings the largely desired extension of the relative statute of limitations in tort and unjust enrichment law, which in practice leads to a significant facilitation of the ovrall process. In contrast, the general limitation period of ten years for contractual claims for property damages remains unchanged.

The referendum period for the revision of the statute of limitations passed by Parliament on 15 June 2018 runs until 4 October 2018, but a referendum is unlikely. The entry into force of the revised provisions will then be determined by the Federal Council.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions