Sellers of professional or private goods in Switzerland are affected by this issue, whether they are selling to consumers or businesses, for all of the following reasons: 

• Because consumer law gives more rights and protection to private consumers 

• Because the seller assumes certain objective responsibilities, even without any fault whatsoever 

• Because a sale, especially a distance sale, involves the issues of re-invoicing taxes, customs duties, costs and insurance. 

• Because the greatest risk for the seller is not being paid, when ownership of the good has already been irrevocably transferred. 

• Because the manufacturer, retailer and resellers each bear their own responsibility on a case-by-case basis in the distribution chain. 

Owners of websites offering goods for sale or resale in Switzerland are also affected by this issue, as data protection rules are added to the sales rules and are strictly regulated. These rules must be included in the general terms and conditions of sale (GTCS). 

This also applies to any private individual who sells second-hand goods privately, since the seller’s liability is not reduced depending on whether he or she is a professional or not. 

What is a sales agreement and what types are there? 

Sales contracts vary according to: 

• Form: an oral sales contract is possible, and many are often concluded, for example in the shop, but written contracts are recommended for distance transactions or for large sums. 

It should be noted that acceptance of the general terms and conditions of sale (GTCS) online is legally equivalent to a contract, even if it is not “in writing” as such. 

We also offer you a model of the general terms and conditions of sale which can be applied to any sale other than those ordered on a website, and which allows you to conclude only very brief sales contracts, with reference to the GTCS.  

• Territory: a distinction is often made between a contract of sale in the same country (without crossing the border) and an international contract of sale. This model allows you to deal with the issues of exporting and importing, re-invoicing customs duties, import VAT and other questions frequently asked in international trade. 

• More commonly used by private individuals, the vehicle sales contract is used to sell a new or used car, and thus to specify known defects, the last inspection, or even to impose prior work or modifications. 

• Finally, it is possible to sell only subject to the fulfilment of a certain condition. The property is leased to the buyer on a trial basis, against rent or, more generally, free of charge, until such time as the buyer decides whether or not to buy the property back. 

Alternatively, the foregoing may be formalised by a contract for the lease of the assets without any real commitment to repurchase, with a subsequent contract of sale that may be entered into by the parties.

• The status of the seller: goods are often marketed not by the seller himself or by retail dealers, but by agents, distributors, business introducers or brokers. For sales in the name and on behalf of the seller, in return for commission, we offer you a model business provider contract. 

What are the main mistakes that salespeople can make and how can they avoid them with AdminTech? 

If the seller does not draw up a good contract of sale, here are the various errors that can occur:  

• Unclear or insufficient description of goods and their characteristics:  

It is not necessarily useful to include all the technical details of the goods for sale in the legal text, especially if it is a catalogue. What is more practical, and what we suggest in our templates, is to provide only a brief description, while adding a detailed appendix to avoid any misunderstanding. 

• Abuse and misunderstanding of Incoterms:  

Established to facilitate international sales, Incoterms identify the obligations and responsibilities of the parties, particularly with regard to transport, delivery and insurance. However, these terms are often confused, not clearly understood by both parties, or the version of Incoterms used is not up to date. For this reason, our templates allow you to select the responsibilities and duties of each party one by one, without ambiguity. 

• Omissions in respect of taxes, customs duties, insurance and other charges: 

Sales contracts often state only the total price, without even specifying whether this price is exclusive of tax (excluding VAT) or inclusive of tax (including VAT), whether customs duties may be charged in addition, who bears the cost of transport and insurance, if applicable, and for what amounts. Our templates address all these questions, depending on the type of sales contract you have chosen. 

• Insufficient specification of deadlines and means in the event of delays:  

The parties often fail to specify whether the deadline is strictly necessary or indicative. Our models allow you to specify whether the deadline cannot be exceeded at all, allowing cancellation in the event of the slightest delay, or to stipulate a penalty for delay in order to encourage the seller to perform his obligations to the best of his ability. 

As with sales deadlines, payment deadlines need to be fairly precise. Our models are so flexible that they allow you to pay according to an instalment plan, or to pay the guarantee instalments before the sale. 

• Defect detection: 

Defects can occur suddenly through no fault of the seller, which does not remove his liability, but the parties often fail to provide rules on how to deal with these situations.  

Our models allow you to prioritise certain measures over others, for example repair rather than cancellation of the sale. You can also limit the seller’s maximum liability, set a final deadline for reporting any defects or, on the contrary, offer additional guarantees. 

• Neglecting the risk of default:  

Not only is this the most common risk for any seller, but because ownership has already been transferred, the seller is often in a precarious position. At the very least, you should make use of the following options, which we suggest: fixing payment reminder fees and interest on arrears. However, the best solution is to provide a sufficient advance deposit, which is also possible with our sales contract templates. 

• Not preparing general terms and conditions of sale for sales to consumers: 

Firstly, they have more rights than professional buyers. Secondly, written contracts are often not concluded or negotiated with consumers – these oral sales leave ambiguity as to the rights and obligations of the parties. So having terms and conditions available, even if they are posted on your website or over the counter, improves the protection of your rights as a seller and gives you clarity and security in your dealings with customers. 

To create a more robust sales contract, we recommend using the AdminTech online contract builder. 

Incoterms (or International Commercial Terms) are a set of three-letter terms that are used in international commerce as definitions of the responsibilities of both parties during the delivery of goods. These terms seem to serve as a common language that provides clarity between buyers and sellers from different countries.  

The seven Incoterms 2020 rules for any mode(s) of transport are: 

EXW – Ex Works 

This Incoterm means the seller’s responsibility is only to pack the goods and make them available for the buyer. At the same time, costs and risks associated with transporting the goods are up to the buyer.  

FCA – Free Carrier 

The term under which the seller fulfills the responsibility of making the goods available for delivery to the agreed place (or person) whether it is the buyer’s means of transport or carrier. According to the risks, once the goods are available for pick-up, all threats are upon the buyer.  

CPT – Carriage Paid To 

Under this circumstance, the seller is responsible for delivering the goods to the carrier, another person, or a defined place. The seller is in charge of export clearance and arranging transportation to the agreed point. After handling the product over to the carrier, the duty is on the seller.  

CIP – Carriage and Insurance Paid To 

This Incoterm has a somewhat similar definition to CPT as the seller is also obligated to deliver the goods to the carrier, another person, or a defined place. However, the additional point here is that the trader is responsible for obtaining insurance against the buyer’s risk of loss or damage during transportation. 

DAP – Delivered At Place 

In the situation of DAP, the ordered products are considered to be delivered once they have reached the final destination where the buyer should get the parcel. Until this time, the seller is responsible for any damage that may happen.  

DPU – Delivered at Place Unloaded 

Under this rule, the seller is liable for any threats that may happen not only during the process of transferring the products but also at the time of unloading. So, in case of damage, it’s up to the seller to cover the expenses.  

DDP – Delivered Duty Paid 

This term means that the seller is responsible for all transferring costs as well as for export clearance. According to the receiver, he or she should get the parcel, and pay for insurance, as well as for any defects during the unload.  

Can the parties use Incoterms 2010, instead of the renewed versions? 

Yes, Incoterms 2010 can be used during the cooperation. However, to avoid any kind of confusion, all parties have to agree to use the same rules.  

To prevent issues, parties should have a mutual understanding of the outlined terms and conditions. In case of any kind of uncertainty, it’s advisable to seek legal advice or consider updating the contract to align with a common set of Incoterms. 

Our sales agreement templates digest the rights and obligations under said Incoterms in comprehensive language. 

Sellers of professional or private goods who sell to consumers in Switzerland are affected by these rights, taking into account all of the following rules: 

1. Consumers are protected not only by the justice system, but also by consumer protection associations. 
2. Non-professional consumers have difficulty interpreting ambiguous restrictive clauses, and so often do not consent to them validly, rendering them null and void. 
3. Consumers have more rights than professional buyers, and your duty to inform them is more extensive. 
4. Consumers are in principle protected by more favourable rules in their country of domicile, unless they travel abroad to buy, and international sales may therefore involve more extensive rights than are available in Switzerland. This is particularly true of the European Union, which gives consumers more rights. 

Main legal rules 

In what follows, we’ll outline the main legal rules you need to be aware of in terms of consumer rights in Switzerland. Here are the key points to remember: 

• Firstly, it is important to clarify who the consumer is. He is a person who buys goods only for his own personal consumption, admittedly he may resell them to a third party at a later date, such as a second-hand car, but without the resale being the main reason for the purchase. 
  • A company never acts as a consumer, but the situation of a sole trader or freelancer is more complicated. 
  • Indications that the buyer is more of a professional include registration in the commercial register, VAT registration, publication of the commercial website, the commercial trademark used or registered, the use of professional emails, etc. 
  • The mere promise or statement that the buyer is not a consumer is not in principle sufficient. 
• The particular right of any consumer is the right of cancellation. Unlike business buyers, who in principle have no legal right to cancel the agreed sale if there is no defect or delay, consumers can cancel the sale without reason in the following circumstances: 
  • Door-to-door sales of goods worth at least CHF 100, sold by a professional. However, this is not the case if the consumer has expressly requested the negotiations or if he was at a market or fair stand. 
  • The right of revocation may be exercised when the consumer has been approached at his place of work or home, on public transport or on the public highway, at an advertising event or by telephone or similar voice telecommunication means. 
  • The period for revoking the sale is 14 days. 
• Unlike in EU countries, there is no general 14-day right of withdrawal after concluding an online sale, but EU law does apply when you sell to consumers domiciled in the EU. However, this rule applies to any member of a commerce.swiss association and constitutes general practice in the field. 
• For sales over the counter in a shop, there is no right of cancellation, and the only way to get out of the contract is to establish a defect in consent at the time the sale is concluded, such as error, deception or coercion. 
• When buying online, consumers are protected by the right to clarity and transparency regarding the identity and conclusion of the contract on the part of the online trader. 
• With regard to general terms and conditions, the law prohibits and renders null and void clauses which, contrary to the rules of good faith, provide, to the detriment of the consumer, for a significant and unjustified disproportion between the rights and obligations arising from the contract. Unlike European law, there is no ‘grey list’, and each case is assessed on its own merits. 
• Unlike in other European countries, there is no maximum delivery period, as deadlines are freely stipulated in the contract. However, providing unreasonably short but impossible delivery times to attract customers is an unfair commercial practice, and therefore prohibited. 
  • Online retailers must provide the minimum information necessary for consumers: 
  • Clearly and completely state your identity and contract address, including e-mail address 
  • Indicate the various technical steps leading to the conclusion of a contract. In practice, ambiguous buttons such as “Continue”, “Finish” or “Next” are not suitable. Instead, use the “Buy” or “Order with obligation to pay” buttons. 
  • Provide the appropriate technical tools to detect and correct input errors before sending an order. 
  • Confirm the customer’s order without delay by e-mail. 
• Additional requirements apply to the indication of prices to consumers: 
  • The price must be stated in Swiss Francs, including non-optional extras of all kinds. 
  • The price and all relevant information concerning it must be clearly visible and easily legible near the goods illustrated or described. 
  • Non-optional extras must be included in the price, as they are imperatively associated with the purchase of the goods and cannot be omitted, e.g. VAT, copyright fees, recycling fees for household appliances, etc. 
  • Shipping costs may be indicated separately, as they may vary according to the volume of the order, but they must also be visible and easily legible. 

To better manage the rules governing consumers’ main rights, here are a few golden recommendations to bear in mind: 

1. Please clearly state whether you intend to sell only to professionals or also to consumers. Different rules must be followed and applied. Our templates allow you to deal separately with the rights of consumers and those of professional buyers. 
2. Clearly assess whether or not you wish to offer online products to consumers in other countries. In this case, we recommend that you create another web domain with terms and conditions adapted to these countries. 
3. Don’t forget to include the necessary information about the merchant and the products on the website. Pay particular attention to prices and charges or taxes. 
4. Make sure that the buttons on the website are clear and unambiguous, and that you clearly state the order summary before confirming it. 

To protect yourself against consumer complaints, you can use our model sales contracts. 

Sellers of professional or private goods, whether they sell to consumers or businesses in Switzerland, are affected by the rules on delivery and liability. 

Here are the main points to be aware of under Swiss law: 

• If you are late, you risk not only a cancellation of the sale, but also an action for additional damages. 
• Proof of delivery is the seller’s responsibility, and it is up to the seller to decide how to provide it properly. 
• Interpreting the appropriate period, the absolute period or the indicative period can be difficult, and doubt favours the buyer rather than the seller, even more so if the buyer is a consumer. 
• Although the seller must fulfil its obligations within a certain period, it is not always the seller who causes the delay. This may be due to the fault of a third party or of the buyer himself, or even force majeure, and all such cases must be clearly demarcated between the parties. 

Any private individual who sells goods privately is also affected, since the seller’s liability is not reduced if you are not a professional. 

Main legal rules 

Now that we have an overview of the context, let’s look at the main legal rules governing delivery times. Here are a few key points to bear in mind: 

• Firstly, it is appropriate to distinguish according to the type of time period agreed, or whether it was agreed at all, according to the following rules:  

• An agreed deadline is generally understood as an indicative deadline, allowing for a slight delay. 
• It must be clearly stated in the contract that a delivery must absolutely be made by a certain date or even time, on pain of cancellation. This could be the case for the delivery of a wedding cake, where a delay of one day cannot be tolerated. 
• If no time limit has been agreed, performance is in principle due immediately. 

• Secondly, any delay is not necessarily the seller’s responsibility. In fact, if you have agreed that a delivery will be made by the third-party carrier, and the seller’s obligations are fully performed when the goods are handed over to this carrier, the seller is no longer liable for any delay once the goods have been handed over within the agreed time.  

The deadline therefore relates to the handover of the goods to the carrier and not to the buyer. 

• If the buyer notices a delay in delivery, he must give the seller formal notice and set a suitable final deadline, failing which the contract will be terminated and any sums paid refunded. 
• The fact that the goods have been delivered or dispatched must be proved by the seller, where applicable. There is no legal list of accepted means of proof, and each situation is assessed on a case-by-case basis, taking into account the circumstances and general practices in this area. 
• In the event of delay, the seller is not only exposed to the risk of cancellation of the sale, but also to any claim for damages. This may be the case if the buyer has to buy a product of the same type, but at a higher price, or if he has to hire a car urgently before a car ordered is delivered. 
• Unless otherwise stated in the contract, the price is due only when the sale is performed. The seller cannot pursue payment of the price if it has not itself performed its obligations. However, providing for a specific date for payment instead of a period after delivery, or providing for a deposit, enables the price to be demanded despite the delay. 
• The seller’s liability is not automatically waived if the delay is attributable to its staff, subcontractors or third-party carriers. These questions should be addressed in the description of the transfer of risks, the seller’s main obligations and the deadlines. 
• There is no automatic right for the buyer to claim price reduction for delay. Moreover, damages because of delay are quite difficult to quantify and prove. So a flat-rate penalty for each day or hour of delay may be worth considering. 

To avoid disputes linked to late delivery, here are our recommendations: 

• Remember to clearly indicate the sales deadlines laid down, either in the individual sales contract or in the general terms and conditions of sale, and to clearly specify or exclude the period of delay to be tolerated, depending on your needs. 
• For regular sales from stock, including online sales, remember to include in your general terms and conditions a deadline for confirming the availability of an item, so that you are not committed until confirmation is given. This will at least avoid you having to pay damages for delays in relation to the general deadlines, as you are not yet bound by a sales contract before this confirmation is given. 
• Clearly define whether your obligations are to hand over the goods to the carrier, to deliver without unloading or with unloading, and who assumes the reciprocal responsibilities. 
• Given that your most important means of pressure is to control the price paid, consider demanding a deposit as a guarantee. Procedurally, this reassures you that the buyer can only claim his rights in court, without simply refusing to pay the price when the delay is not your contractual responsibility. 
• Use our templates to clarify what happens when the delay in delivery is due to the buyer’s fault. He has no firm obligation to do so, but must attend the delivery as far as possible, or risk losing his rights. This is the case if the buyer has given a wrong address or does not show up at the agreed delivery time. 
• Remember to settle the outcome of non-delivery, particularly if the buyer does not collect the goods. Can you leave it outside the door? Can you post back at the buyer’s expense? 
• And don’t forget to work out how proof of delivery is to be provided to avoid any misunderstandings. Proof – this is the most important thing in any dispute. 
• The above options can be used to protect you with our model sales contracts and general terms and conditions.

In Switzerland, the seller’s liability for defects in goods applies to all sellers of goods, whether they are selling to consumers or businesses, and whether they are professionals or private individuals. 

Here are the different rules governing this responsibility: 

1. The seller is liable for defects even if he is not at fault or was unaware of them. 
2. Although the seller’s liability is often limited, there are limits. 
3. The contract of sale must not only regulate how the transaction will proceed if all goes well, but above all must provide for and resolve in advance all issues relating to defects, their discovery, repair and the buyer’s rights, as well as limiting these rights as far as possible. 
4. The absence of a written sales contract does not mean that you, as the seller, do not undertake to guarantee the quality of the goods sold. 

Any private individual who sells second-hand goods privately is also affected, since the seller’s liability is not reduced in the case of used goods, but specific safeguards can and must be stipulated in the contract. 

Main rules governing the seller’s liability for defects 

The following is a list of the main legal rules on the seller’s liability for defects in Switzerland. Here are the main points to bear in mind: 

• By entering into a contract of sale, the seller gives a guarantee on account of defects in the thing, i.e. he is liable in respect of the promised qualities as well as defects which deprive the thing of either its value or its intended usefulness or which diminish them. 
• The seller is liable for defects even if he was unaware of them, and even if he has not committed any personal fault. His liability is said to be objective. 
• The seller is only liable for defects which the buyer should have noticed himself by examining the thing with sufficient care, if he has affirmed that they did not exist. 
• It does not matter whether the goods are sold as a balance of stock, with a discount, at a reduced price or with other benefits or additional services. However, the parties often agree, in the sale of second-hand goods, that the reduced price is due to an existing defect, which the customer accepts against a reduction in the price and consequently waives any claim due to this known and accepted defect. 
• The seller may in principle stipulate in a contract or in the general terms and conditions to reduce or limit his liability. But this is not without limits – any clause that removes or restricts the warranty is void if the seller has fraudulently concealed the defects of the thing from the buyer. 
• The buyer is obliged to check the condition of the item received as soon as he can according to the usual course of business; if he discovers any defects for which the seller is liable, he must notify the seller without delay. Otherwise, the item is deemed to have been accepted, unless the defects were ones that the buyer could not discover by means of the usual checks. 
• In the event of defects being discovered, the buyer shall in principle have the following rights: 
• Cancel the sale and demand restitution of the price, including partial cancellation if part of the things sold are defective. 
• To request a proportional reduction in the price. 
• For fungible goods, request replacement of the goods with items of the same kind. 
• Contractual clauses allowing only a right to repair are often appreciated. 

In the event of cancellation of the sale, if the defective item has perished as a result of its defects or an act of God, the buyer is only obliged to return what remains of the item. For the rest, the buyer is obliged to keep the item and examine it regularly, and cannot simply return it to the seller without further formality. 

Liability for defects passes to the buyer at the time of transfer of risk. The time specified in the contract – for example, handover to the carrier or delivery – is decisive. After this point, the seller is not liable for the loss, damage, theft or destruction of the goods. 

In this final section, we’ll give you some recommendations on how best to manage your liability for defects as a seller in Switzerland. Here is our advice: 

• Remember to clearly delimit the moment of transfer of risk using our sales contract templates, which will enable you to determine whether the buyer should take action against the seller or the carrier in the event of damage to the goods during transport. 
• For the sale of second-hand goods, it is always advisable to specify any known defects or damage, and thus accepted by the buyer without reservation. 
• Depending on the type of goods sold, you can choose an option in our templates to give preference to certain measures, such as replacement or repair rather than a price reduction or cancellation of sale. 
• Don’t forget to use our option to limit the seller’s liability, often equivalent to the full price paid. This will protect you against further claims from the buyer, for example if a computer burns down and damages some personal or office property. 
• The buyer’s most important means of protecting his rights is to refuse payment of the price. However, always remember to provide for payment in advance or a guarantee deposit, to avoid the buyer not paying you, believing that the goods are faulty, when they are not. 

All these options are available in our various sales contract models.

• Where a sale has been made orally, the goods handed over and the price paid, it is preferable to formalise it in a bill of sale, which relieves the seller of any liability and confirms that any defects, if any, are duly examined and accepted by the buyer after the transaction.