SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
the injured party is the buyer) or general tort law. The latter, however, would require proof of fault. Given this obstacle, a claimant would generally invoke the respective tort claim only on a subsidiary basis. Against the Seller The Swiss Code of Obligations provides for the strict contractual liability of a seller for the direct damage suffered by a buyer due to a defective object pur - chased from that seller. “Direct damage” would also include any personal damage or damage to property which was directly caused (ie, without any additional causal link) by the product’s defect. If the seller were also the producer of the defective product, the injured buyer could alternatively base its claim for damages on the Federal Product Liability Act as discussed above. 2.2 Standing to Bring Product Liability Claims In Switzerland, the standing to bring claims for prod - uct liability is – such as with any other claim – a matter of substantive law, ie, it depends on the legal basis of a claim. A party has standing to sue if it (at least allegedly) has a substantive claim under a certain law or legal relationship. In the context of product liability, claims are usually based on either the Federal Product Liability Act, a contract or tort law (as discussed in 2.1 Product Lia- bility Causes of Action and Sources of Law ). Under the Federal Product Liability Act, any person injured by a defective product or any person suffer - ing property damage due to a defective product may bring a claim against the responsible producer. For contractual claims, a party to a contract usually has standing to sue if it suffers damage following a violation of the contract by the other party (in the con - text of product liability, eg, in case of the delivery of a defective product). Under general tort law, any person who has suffered damage following a civil wrong committed by another person – whether or not the injured party is linked to that person by a legal relationship, such as a contract (eg, as is often the case in product liability matters
between a consumer and a producer) – has standing to sue. Which of these legal bases is the most favourable for an injured party to bring claims related to a product depends largely on the underlying facts of the case. Whenever there is a contractual relationship, an injured party will most probably bring claims under that contract given that, under Swiss law, there is a presumption of fault, ie, the burden of proof is on the breaching party causing damage, and in sales con - tracts there is even a strict liability without requirement of fault for direct damage. If there is no such contract – which is usually the case between an injured party and a producer – the injured party would generally try to sue a producer primarily under the Federal Prod - uct Liability Act because of its strict liability, whereas under tort law the producer can only be held liable in case of fault. 2.3 Time Limits for Product Liability Claims The applicable time limit depends on the legal basis that the respective claim is based on. For claims based on the Federal Product Liability Act, the stat - ute of limitations is three years, starting from the date on which the injured person became or should have become aware of the damage, the defect of the prod - uct and the identity of the producer (Article 9 of the Federal Product Liability Act). For claims based on contract law (in the context of product liability, most likely a sales contract), the stat - ute of limitations is two years, starting from the day the defective product was delivered (Article 210, Swiss Code of Obligations). For claims based on tort law, the Swiss Code of Obli - gations provides for two different statutes of limita - tions: a relative and an absolute one (Article 60, Swiss Code of Obligations). The relative limitation period is three years, starting from the date on which the injured person became aware of the damage and the per - son liable for it. The absolute limitation period is ten years for property damaged and 20 years for personal injury, starting from the date on which the damag - ing event occurred or ended. This longer limitation period for personal injury under tort law means that a producer may be held liable by an injured party, even
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