Recht Basics
Recht Basics
Recht Basics
Kartei Details
| Karten | 91 |
|---|---|
| Sprache | English |
| Kategorie | Recht |
| Stufe | Mittelschule |
| Erstellt / Aktualisiert | 17.11.2015 / 17.11.2015 |
| Weblink |
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Differentiating Work Contracts from Other Contracts
Sales Contracts
• Promise to manufacture an object is a sale if it is mass produced; otherwise a work contract («contract for the supply of goods to be manufactured») • Sale of an object combined with duty to assemble it: can be sale, work contract or mixed contract
Mandates
• the agent does not promise a specific result, only that he will diligently work towards a certain goal • Expert opinions are qualified as works if the result can be objectively measured • Contract with a dentist is a mandate
Architect and Engineering Contracts
• Plans, drawings: work contract • Managing and supervising construction: mandate • If architect does both: mixed contract
Contractor’s Obligations in a work contract
Main Obligations:
Construction of a Work
Delivery of the Work
Ancillary Obligations:
Duty of Care
Duty of Loyalty
Liability for Material
Duty to Inform and Notify
Supply Resources/Tools at Own Expense
Principals Obligations in a work contract
Main Obligations:
Payment
Ancillary Obligations:
Taking delivery of the work
Other ancillary obligations: e.g. inspection of goods and notice of defect (art. 367 CO
Liability for Defects in Quality in a work contract & Principals rights arising (art 368 CO)
Requirements: Defect, inspection (art 367 CO), noticeof defect (art 367 CO), principal is not at fault (art 369co), principal did not accept work (art 370 CO), no fault on the contractors part necessary-
Rights: rescission, reduction of compensation, cure, payment of consequential damages.
Prescription in work contract
• 2 years following delivery (art. 371 para. 1 CO) • 5 years if the defects of a movable work that has been built in an immovable work have caused this immovable work to be defective (art. 371 para. 1 CO). • If the delivered work is an immovable work, the rights of the principal arising from defects against the contractor as well as against the architect or engineer that have rendered services for the building of the work, prescribe five years following delivery of the work (art. 368 para. 2 CO)
Termination of the Work Contract
Contractor's Rights:
Change in circumstances art. 373 para. 2 CO
Impossibility to fulfill, attributable to the principal art. 378 CO
Impossibility due to death or incapacity of contractor art. 379 CO
Principal's default art. 107 para. 2 CO
Principal’s Rights:
Late commencement art. 366 para. 1 CO
Substantial defects art. 368 para. 1 CO
Excessive increase in compensation art. 373 para. 2 CO analogously
Estimate is exceeded art. 375 CO
Termination at any time with indemnification art. 377 CO
Contractor’s default art. 107 para. 2 CO
Differentiating Mandates from Other Contracts
Work Contracts: • Result is owed, not activity
Employment Contracts: • Subordination of the employee
Doing a Favor and Giving Advice: • No intention to create a legally binding relationship
The principals obligations in a mandate
Main obligation: payment, if:
-agreed or customary
Ancillary obligations (art. 402 CO)
-Reimburse agent for expenses incurred
-Release agent from any obligations
The Agent’s Obligations in a mandate
Main obligations:
-performing diligently and in conformity with mandate
-depending on the circumstances: obligation to transfer acquired rights
Ancillary obligations:
-duty of care
-duty of loyalty
-obligations to disclose and notify
-depending on the circumstances: obligation to transfer acquired rights
Consequences of a Breach of Contract Mandate
• Damages for breach of the duty of care: art. 97 et seq. or art. 398 para. 2 CO • Damages require the agent to be at fault, i.e. at least acted negligently • Agent does not perform at all or does not perform to the agreed extent: art. 102 et seq. CO
Termination of the Mandate
• One time mandate is terminated if agreed upon service has been performed correctly • Continuous mandate is terminated after the agreed upon time • Notice of termination: at any time (art. 404 para. 1 CO) o Art. 404 CO is mandatory o Termination at an inappropriate time: liability for damages (art. 404 para. 2 CO) • Termination because of death, legal incapacity or bankruptcy of either the principal or the agent (art. 405 CO)
