The Mandate Contract in Switzerland: Rights and Obligations

Definition (art. 394 CO)

The agent undertakes to manage the entrusted matter or render promised services. The mandate is an obligation of means, not result: the agent must act with care but does not guarantee success. Lawyers, doctors, architects and fiduciaries typically work under mandate. The mandate rules apply subsidiarily to all work not subject to other provisions (art. 394 para. 2 CO).

Agent's Obligations

Duty of Care and Loyalty (art. 398 CO)

Execute with all required care and safeguard the principal's interests. Liable for faithful and diligent execution (art. 398 para. 2 CO).

Duty to Account (art. 400 CO)

Must account to the principal on request and at mandate end. Must return everything received in the exercise of the mandate.

Personal Execution (art. 398 para. 3 CO)

Must execute personally. Sub-delegation only if authorised by contract or circumstances. Unauthorised delegation: liable for the sub-agent's damage.

Principal's Obligations

Reimburse expenses with interest and release from obligations (art. 402 para. 1 CO). Liable for damage caused to the agent by execution, unless proving no fault (art. 402 para. 2 CO). Remuneration due only if agreed (art. 394 para. 3 CO), though presumed for professionals.

Revocability (art. 404 CO)

Fundamental principle: the mandate may be revoked at any time by either party. This is mandatory law per Federal Supreme Court case law. Contrary clauses are void. The revoking party at an inopportune time must compensate for resulting damage (art. 404 para. 2 CO) - limited to negative interest.

Liability (art. 398 para. 2 CO)

Liable for faithful execution. Fault (breach of duty of care), damage and causal link required. Burden of proving absence of fault lies with the agent (art. 97 CO by reference).