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In Switzerland, the subject of liability for defects, fault or negligence mainly concerns service and works providers, taking into account all of the following points: 

  1. Service contracts may sometimes involve a transfer or modification of ownership, giving rise to strict liability for defects without fault being required. 
  2. The performance of services often involves a number of subcontractors, whose misconduct may make you personally liable. 
  3. Case law on the limitation or reduction of liability by contractual clauses is fairly restrictive. 
  4. In addition to the responsibilities of the service provider, the customer or his agents may also make a mistake that affects the outcome of your work. 
  5. Clarity in a contract is the key to success in order to avoid any complaints about the quality of services. 

In addition, any website owner offering online services in Switzerland should be aware that system malfunctions, loss of data by the site host or cyber-attacks can cause significant damage to your customers and engage your liability. 

Main legal rules 

With regard to the legal rules governing the provider’s liability for defects, fault or negligence, here are the main points to note: 

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It should be noted that where the subcontractor does not perform only part of the service or only a subordinate task, but fully replaces the service provider, the latter is only liable for the care with which it chose and instructed the subcontractor. On the other hand, the substitute may be acted upon directly by the customer, subject to certain limits – the only exception in Swiss law in this area being that the substitute is not itself bound by the contract to the customer. 

Recommendations 

To limit liability in contracts of enterprise, we recommend that you consider the following tips: 

  1. In contracts for work and services, remember to clearly delimit the moment of transfer of risk using our contract templates, and the service provider will no longer be liable for damage or defects after this moment. 
  2. As a subcontractor, be careful if you accept payment or instructions directly from your principal’s customer, as this may imply a tacit contract with him, whereas all the limitations of liability that you have agreed with your direct principal will no longer be enforceable against this customer who has not signed up to them.
  3. Always remember to limit your liability to the amount of fees paid during a certain period prior to the dispute. 
  4. Even if you are contractually authorised to do so, always ask your customer for firm acceptance if you hire external subcontractors. 
  5. Include a clause in the contract specifying the time limit after completion for reporting any defects in the service. If the customer accepts unreservedly that there is no defect, you can no longer be held liable.