A contract for work and services is a contract whereby the contractor undertakes to carry out work and the customer undertakes to pay him for that work.
Art. 364
1 The contractor generally has the same duty of care as the employee in an employment relationship.200
2 The contractor is obliged to carry out the work in person or to have it carried out under his personal supervision, unless the nature of the work is such that his personal involvement is not required.
3 Unless otherwise required by agreement or custom, the contractor is obliged to supply the resources, tools and machinery necessary for performance of the work at his own expense.
Art. 365
1 Where the contractor is responsible for supplying the materials, he is liable to the customer for their quality and has the same warranty obligation as a seller.
2 Where materials are supplied by the customer, the contractor must treat them with all due care, give account of how they are used and return any that remain unused to the customer.
3 Where in the course of his work the contractor notes defects in the materials supplied or the designated construction site or any other circumstance arises which might compromise the correct or timely performance of the work, he must inform the customer immediately, failing which he himself will be liable for any adverse consequences. Art. 366
1 Where the contractor fails to commence the work on time or delays its performance in breach of contract or, through no fault of the cus- tomer, falls so far behind that there is no longer any prospect of com- pleting the work on time, the customer is entitled to withdraw from the contract without waiting for the agreed delivery date.
2 Where during the course of the work it becomes evident that, through the fault of the contractor, the work will be performed in a manner that is defective or otherwise contrary to the agreement, the customer may
200 Amended by No II Art. 1 No 6 of the Federal Act of 25 June 1971, in force since 1 Jan.
1972 (at the end of this Code, Final and Transitional Provisions of Title X).
A. Definition B. Effects I. Contractor’s obligations 1. In general 2. Regarding materials 3. Prompt commencement and contractual performance of work
set or have the court set the contractor an appropriate time limit within which to take remedial action and notify him that any failure to do so will result in the hire of a third party to take such remedial action or to complete the work at the risk and expense of the contractor.
Art. 367
1 The customer must inspect the condition of the delivered or com- pleted work as soon as feasible in the normal course of business and must inform the contractor of any defects discovered.
2 Each party is entitled to request that the work be inspected by experts at his own expense and that a legal record be made of their findings. Art. 368
1 Where the work is so defective or deviates from the contractual terms to such an extent that the customer has no use for it or cannot equitably be expected to accept it, the customer may refuse acceptance and, if the contractor is at fault, seek damages.
2 In the case of minor defects in the work or only slight deviations from the contractual terms, the customer may reduce the price in proportion to the decrease in its value or require the contractor to rectify the work at his own expense and to pay damages if he was at fault, provided such rectification is possible without excessive cost to the contractor.
3 In the case of work carried out on the customer’s land or property which by its nature cannot be removed without disproportionate detri- ment to the contractor, the customer has only the rights stipulated in paragraph 2.
Art. 369
The rights accruing to the customer in respect of defects in the work are forfeited if he is at fault for such defects due to having given in- structions concerning performance of the work that were contrary to the express warnings of the contractor or for any other reason.
Art. 370
1 Once the completed work has been expressly or tacitly approved by the customer, the contractor is released from all liability save in re- spect of defects which could not have been discovered on acceptance and normal inspection or were deliberately concealed by the contrac- tor.
2 Tacit approval is presumed where the customer omits to inspect the work and give notice of defects as provided by law.
4. Liability for defects a. Identification of defects b. Rights of the customer in the event of defects c. Customer’s liability d. Approval of the work
3 Where defects come to light only subsequently, the customer must notify the contractor as soon as he becomes aware of them, failing which the work is deemed to have been approved even in respect of such defects.
Art. 371201
1 The right of the customer to bring claims due to defects in the work is limited to two years from acceptance of the work. However, the period amounts to five years where defects in a movable object that has been incorporated in an immovable work in a manner consistent with its nature and purpose have caused the work to be defective. 2 The customer’s claims in respect of defects in an immovable work against both the contractor and any architect or engineer who rendered services in connection with such work become time-barred five years after completion of the work.
3 Otherwise the rules governing time limits for the corresponding rights of a buyer apply mutatis mutandis.
Art. 372
1 The customer must pay for the work on completion or delivery. 2 Where the work is delivered in stages and payment in instalments has been agreed, the amount due for each stage of the work is payable on delivery thereof.
Art. 373
1 Where the payment was fixed in advance as an exact amount, the contractor is obliged to perform the work for the agreed amount and may not charge more even if the work entailed more labour or greater expense than predicted.
2 However, where performance of the work was prevented or seriously hindered by extraordinary circumstances that were unforeseeable or excluded according to the conditions assumed by both parties, the court may at its discretion authorise an increase in the price or the termination of the contract.
3 The customer must pay the full price even where the work has en- tailed less labour than predicted.
201 Amended by No I of the Federal Act of 16 March 2012 (Limitation Periods for Guarantee
Claims. Extension and Coordination), in force since 1 Jan. 2013
(AS 2012 5415; BBl 2011 2889 3903).
e. Time limits
II. Customer’s obligations 1. Due date for payment
2. Amount of payment a. Firm commit- ment
Art. 374
Where the price was not fixed in advance or fixed only as an approxi- mate amount, it is determined according to the value of the work carried out and the expenses incurred by the contractor.
Art. 375
1 Where an estimate agreed with the contractor is exceeded by a dis- proportionate amount through no fault of the customer, he has the right to withdraw from the contract before or after completion.
2 In the case of construction work carried out on his land or property, the customer is entitled to an appropriate reduction in the price or, if the work is not yet complete, to call a halt to the work and withdraw from the contract against equitable compensation for work already done.
Art. 376
1 If by accident the work is destroyed prior to completion or delivery, the contractor is not entitled to payment for work done or of expenses incurred unless the customer is in default on acceptance of the work. 2 In this case any loss of materials is borne by the party that supplied them.
3 Where the work has been destroyed either due to a defect in the materials supplied or the construction site designated by the customer or as a result of the method of performance prescribed by him, the contractor is entitled to payment for the work already done and of expenses incurred that were not included in the price, provided he alerted the customer to the risks in good time, and also to damages if the customer was at fault.
Art. 377
The customer may withdraw from the contract at any time before the work is completed provided he pays for work already done and in- demnifies the contractor in full.
Art. 378
1 Where completion of the work is rendered impossible by chance occurrence affecting the customer, the contractor is entitled to payment for the work already done and of expenses incurred that were not included in the price.
2 Where the customer is at fault for the impossibility of performance, the contractor may also claim damages.
b. By the value of the work C. Termination I. Withdrawal because estimate exceeded II. Destruction of the work III. Withdrawal by the customer against indem- nity IV. Impossibility of performance for reasons attributable to the customer
Art. 379
1 Where the contractor dies or becomes incapable of finishing the work through no fault of his own, the contract for work and services lapses if it was concluded with a view to the personal attributes of the con- tractor.
2 The customer is obliged to accept and pay for work already done to the extent it is of use to him.