General Terms and Conditions: Validity Under Swiss Law

Incorporation

Three conditions for GTCs to be enforceable: possibility of becoming aware (effective access before or at conclusion), acceptance (express or tacit, e.g. signing a contract referencing GTCs), and absence of unusual clauses.

The Unusual Clause Rule (Ungewohnlichkeitsregel)

Federal Supreme Court doctrine: an objectively unusual clause that the party could not reasonably expect is not covered by the global consent to the GTCs. Even a signed contract does not bind the party to unusual clauses. A clause loses its unusual character if the party's attention was specifically drawn to it.

Content Control

Ambiguous Clause Rule (in dubio contra stipulatorem)

Ambiguous GTC clauses are interpreted against the drafter.

Art. 8 UCA (Unfair Competition Act)

Prohibits GTCs that, contrary to good faith, create a notable and unjustified imbalance to the consumer's detriment. Entered into force in 2012.

Tenancy (art. 256 para. 2 CO)

GTC clauses derogating from mandatory tenant protections are void.

Exclusion of Liability in GTCs

Subject to art. 100 CO limits: cannot exclude liability for wilful misconduct or gross negligence. The unusual clause rule may apply to particularly broad exclusion clauses.

Practical Advice

GTCs must be accessible, clear and not contain manifestly disadvantageous clauses. Critical clauses should be highlighted to avoid the unusual clause rule.