Swiss Civil Code (ZGB)

by Kurt Siehr

1. Origins

The Swiss Civil Code (Schweizerisches Zivilgesetzbuch (ZGB)) of 10 December 1907 entered into force on 1 January 1912 according to Art 61(1) of its Schlusstitel (Final Chapter). The Federal Constitution of the Swiss Confederation of 29 May 1874, revised by the referendum of 13 November 1898, was amended by the new Art 64(2), and the federation thus obtained ‘legislative jurisdiction also in the remaining fields of private law’. This was in addition to the legislative jurisdiction on capacity, obligations (Swiss Code of Obligations (OR)) and intellectual property, which had existed since 1874. The preparatory work on the ZGB had already started earlier. On 16 September 1884 at the Swiss Assembly of Jurists (Juristentag) in Lausanne, the head of the Federal Department of Justice and Police urged ‘de provoquer une étude comparée complète de la législation civile des états de la Suisse’. Eugen Huber (1849–1923) took over this task. Huber was at that time law professor in Basel. He prepared, in his four-volume work System und Geschichte des schweizerischen Privatrechts (1886–93) (System and History of Swiss Private Law), the basis for the unification of Swiss private law on a federal level. In 1888 Eugen Huber, by then a professor of law in Halle (Germany), was called back to Switzerland and asked by the federal council (Bundesrat) to prepare a uniform civil code for Switzerland. Besides being professor at the University of Bern and, since 1902, a member of Parliament (Nationalrat), Eugen Huber prepared the ZGB, which—after the amendment of the Federal Constitution in 1898—became law on 10 December 1907.

With the ZGB, Swiss private law was unified for the first time in fields other than the law of obligations. The ZGB unified the law of persons, family law, the law of succession, and also the law of property. Before the ZGB entered into force, cantonal law prevailed in the field of private law. The cantons first tried to solve problems of intercantonal conflicts by so-called ‘concordats’, before the Federation passed the Federal Statute concerning the Civil Status of Residents and Sojourners of 25 June 1891, the predecessor of the Swiss Federal Statute on Private International Law of 1987. Cantonal law, valid before the ZGB entered into force, may be divided into four different groups. (1) The first group of cantons of western and southern Switzerland (especially the canton of Geneva) had codifications with the French Code civil serving as inspiration. (2) The second group comprises, for example, the cantons of Berne, Lucerne and Solothurn which had codifications closely linked to the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB). (3) For the canton of Zürich, Johann Caspar Bluntschli (1808–81) had prepared the Privatrechtliches Gesetzbuch (Code of Private Law) of 1853/55 on the basis of German pandectist doctrine. The same was done by Peter Conradin von Planta (1815–1902) for the canton of Grisons in the Bündnerisches Civilgesetzbuch (Civil Code of Grisons) of 1862. (4) The last group (eg the cantons of Basle/Bâle and St Gallen) had no civil code; unwritten law and special statutes prevailed.

2. Content

The ZGB is equally binding in the three official languages of the Federation (French, German and Italian). It deals after a short introduction (Arts 1–10) with the law of persons (Arts 11–89bis), with family law (Arts 90–485), with the law of succession (Arts 457–640), and with property law (Arts 641–977). The Schlusstitel (Final Chapter) contains in Arts 1–251 certain provisions on the ZGB’s application and introduction, especially those on intertemporal law. The Code of Obligations (CO) is laid down in the Federal Statute of 30 March 1911 concerning the Amendment of the Civil Code (Part Five: Law of Obligations) and is regulated separately (Swiss Code of Obligations (OR)).

There are five noteworthy characteristics of the ZGB:

(1) There is no general part as it is known in the German Bürgerliches Gesetzbuch (BGB).

(2) The ZGB is not only applicable to civil law relationships but also to commercial relations. Swiss law consciously refused to have a separate commercial code as in France or Germany (Code unique).

(3) Up to now there are many provisions of civil procedure in the ZGB, eg Arts 135 ff on divorce proceedings. The explanation for this anomaly is simple. Before the new Federal Code of Civil Procedure of 18 December 2008 entered force on 1 January 2011, there were 26 different cantonal codes of civil procedure. Therefore, the Swiss Federation also dealt with questions of procedure wherever uniform regime of civil procedure appeared to be necessary. This has changed in view of the fact that the new Federal Constitution of 18 April 1999 gave legislative competence with respect to civil procedure to the Federation.

(4) The ZGB is an original codification that consciously sometimes follows the tradition of the German-speaking cantons and sometimes the traditions of the French-speaking western part of Switzerland.

(a) In the law of persons one can read in Art 28(1) ZGB (old version): ‘Where anyone is being injured in his person or reputation by another’s unlawful act, he can apply to the judge for an injunction to restrain the continuation of that act.’ This protection of personality in the year 1907 is a good example of an advanced and courageous act of legislation.

(b) The original version of the ZGB was rather patriarchal, as were most civil codes of that time. This can be shown by the following short and precise provisions: ‘The husband is the head of the conjugal union’ (Art 160(1) ZGB); ‘The husband administers all matrimonial property’ (Art 200(1) ZGB); ‘Children owe obedience and respect to their parents’ (Art 275(1) ZGB). On the other hand the ZGB was more advanced than many other civil codes insofar as it allowed recognition of paternity and also judicial determination of paternity with or without a status relationship (Arts 307 ff ZGB (old version)), though this did not apply to children being conceived in an adulterous or incestuous relationship.

(c) Marriage law was also patriarchal in character. The husband and father of the family had the last word according to the original version of the ZGB. The statutory matrimonial property regime was originally the community of property regime (Arts 191 ff ZGB), which unified all property of the spouses, irrespective of whether it was owned by them before the marriage or was acquired afterwards, in a regime of conjugal property (Art 200(1) ZGB (old version)). Divorce was allowed and divorce proceedings were governed by the inquisitorial system, according to which the court has to convince itself that the requirements of divorce have been met.

(d) In the law of succession, limitations on the freedom of testation are the most remarkable feature. Only the closest relatives can inherit ab intestato, up to the grandparents of the deceased person (Art 460(1) ZGB). Brothers and sisters were included in the range of persons receiving a compulsory share of the inheritance (Art 470(1) ZGB (old version)); the persons entitled to a compulsory share become heirs to the extent of their compulsory portion; they do not just have a claim against the heirs (Arts 471, 522 ff ZGB).

(e) In the law of property, a valid contract is required for the transfer of title; additionally bona fide purchase is modelled after the French Code civil (Art 934(1) and (2) ZGB). The law of possession is treated extensively (Arts 919 ff ZGB).

(5) The ZGB is a courageous and self-confident codification. It recognizes that there may be lacunae and, following Aristotle (Nicomachean Ethics V, x, 5), Art 1(2) ZGB thus provides that in such cases the court ‘should decide as if it were a legislator [ie by applying a rule that can be used generally and not just in the individual case before the court]’. Additionally, Art 2 ZGB stresses that ‘every person is bound to exercise his rights and fulfil his obligations according to the principles of good faith’ (1) and forbids the ‘evident abuse of a right’ (2). Finally, the ZGB requires the judge, if he has to use his discretion, ‘to base [it] on principles of justice and equity’ (Art 4 ZGB).

3. Developments

In the course of almost 100 years since its entry into force on 1 January 1912, the ZGB has been revised in several respects.

(a) The law of persons and the law on the protection of personality (personality rights) were revised by the Federal Act of 16 December 1983 (Arts 27 and 28 ZGB), and the law of foundations (Arts 80 ff ZGB) was amended by the Federal Act of 8 October 2004.

(b) Of the original provisions on family law, very little has survived. The modernization started with the reform of the law of adoption (Federal Act of 30 June 1972), continued with the law of children (Federal Act of 25 June 1976) and came to an end with the reform of the effects of marriage (Federal Act of 5 October 1984) as well as the new divorce law (Federal Act of 26 June 1998). Today, the best interest of the child is also paramount. Additionally, in marriage law, the equality of husband and wife prevails, and there is now a matrimonial property regime of participation of acquisitions (a regime of separation of property with a division of acquisitions at the end of marriage). The law of guardianship and the law of protection of adults were revised recently (Federal Act of 19 December 2008). The law of registered partnerships is regulated in the Federal Act of 18 June 2004 which has remained outside of the ZGB.

(c) The law of succession has never been systematically revised. It has only been changed occasionally when other parts of the ZGB underwent a revision having some impact on the law of succession. Thus, the position of the surviving spouse has been strengthened (Art 462 ZGB), all children are equal with no distinction as to their birth occurring within or outside of marriage (Art 457 ZGB) and the compulsory share of brothers and sisters has been abolished (Art 471 ZGB).

(d) The law of property, especially that of immovable property, has been repeatedly changed. The Federal Act of 19 December 1963 introduced condominiums, the Federal Act of 19 March 1965 regulated building law and land transfer law, and the Act of 4 October 1991 revised the law of immovable property and the law relating to farming tenements. The law of movable property provides that animals are no longer movable property (Art 641a(1) ZGB), and, according to the Cultural Property Transfer Act of 20 June 2003, cultural objects are protected against loss by prescription (Art 728(1ter) ZGB) and bona fide purchase (Art 934(1bis) ZGB).

Finally, the ZGB is developed and kept up to date by cases decided, in particular, by the Federal Court in Lausanne and by discerning contributions by scholars, among them the authors of the Standard Basle, Bern and Zurich Commentaries on the ZGB.

4. Significance

The ZGB is recognized, even outside of Switzerland, as a well-conceived civil code. Especially appreciated is the easy comprehensibility which, to a large extent, is due to the existence of three official languages (French, German and Italian) which are equally binding. Moreover, the ZGB was translated into Turkish and with very few exceptions (eg matrimonial property law) entered into force in Turkey as the Turkish Civil Code of 1926. Since that time, Swiss law has usually been the guiding model for any reform of Turkish private law. When the Italian Codice civile of 1942 was drafted and the Greek Civil Code of 1940/46 was promulgated, the ZGB was also taken into account as a modern codification with many good ideas to be copied or further developed. Up to the present, the ZGB is admired as an excellent example of a successful codification of private law.

Literature

Josef Kohler, ‘Eugen Huber und das Schweizer Zivilgesetzbuch’ (1913) 5 Rheinische Zeitschrift für Zivil- und Prozessrecht des In- und Auslandes (RheinZ) 1; Max Rümelin, Eugen Huber (1923); Paul Mutzner, ‘Eugen Huber’ (1924) 43 Zeitschrift für Schweizerisches Recht 1; Theo Guhl, ‘Eugen Huber’ in Hans Schultheß (ed), Schweizer Juristen der letzten hundert Jahre (1945) 323; Ernst Hirsch, ‘Das Schweizerische Zivilgesetzbuch in der Türkei’ [1954] Schweizerische Juristen-Zeitung 337; Erich Pritsch, ‘Das Schweizerische Zivilgesetzbuch in der Türkei’ (1957) 59 ZVglRWiss 123; Ferdinand Elsener, Die Schweizer Rechtsschulen vom 16. bis zum 19. Jahrhundert (1975); Pio Caroni (ed), L’unification du droit privé suisse au XIXe siècle (1986); Pio Caroni, Rechtseinheit. Drei historische Studien zu Art. 64 BV (1986); Dominique Manaï, Eugen Huber—Jurisconsulte charismatique (1990); François Dessemontet and Tuğrul Ansay (eds), Introduction to Swiss Law (2nd edn, 1995); Peter Gauch and Jörg Schmid (eds), Die Rechtsentwicklung an der Schwelle zum 21. Jahrhundert. Symposium zum Schweizerischen Privatrecht (2001); Urs Fasel, Sachenrechtliche Materialien. Von den ersten Entwürfen bis zum Gesetz 1912 (2005); Suzette Sandoz, Switzerland in W Pintens (ed), International Encyclopedia of Laws, vol 6, Family and Succession Law (2006); Susanne Genner, Dekodifikation. Zur Auflösung der kodifikatorischen Einheit im schweizerischen Zivilrecht (2006); Markus Reber and Christoph Hurni (eds), ‘Die Erläuterungen von Eugen Huber. Text des Vorentwurfs von 1900’ in Materialien zum Zivilgesetzbuch, Berner Kommentar zum schweizerischen Privatrecht, vol II (2007); Christoph Hurni, Markus Reber and Sibylle Hofer (eds), ‘Das Memorial von Eugen Huber, Teil- und Departementalentwürfe, Botschaft zur Einführung der Rechtseinheit’ in Materialien zum Zivilgesetzbuch, Berner Kommentar zum schweizerischen Privatrecht, vol I (2009).