Overview of seller’s liability for defects in Switzerland

Seller’s liability for defects

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. 

Recommendations

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.

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• 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. 

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