EXPERT INSIGHT 61 APR 2022 | WWW.LAWYER-MONTHLY.COM predictable and there is little risk of contractual gaps resulting in invalidity of entire contracts. As long as the parties have agreed on the essential points of their contract, they have concluded a valid contract, and gaps are filled by recourse to general principles and statutory law. These default provisions principally correspond to international commercial expectations regarding the parties’ respective rights and obligations. Furthermore, in interpreting statutory law, Swiss courts take into consideration the reasonable and good faith expectations of the parties and the needs of commerce. This allows contracts to be much shorter and less exhaustive than in many other countries’ contract laws. Nevertheless, Swiss law should not come to scene randomly – it is advisable to negotiate the choice of law and jurisdiction/arbitration clause early and to structure the contract accordingly. In our last discussion, you mentioned that Swiss contract law provides considerable scope for contractual limitation. How does this compare to contract law abroad? Swiss contract law is very flexible. It is strongly based on the principle of freedom of contract, and few mandatory provisions on the exclusion or limitation Besides being perceived as a “neutral” legal system, Swiss substantive law is popular with users around the world for its stability and business-friendliness. of liability exist (with the most important mandatory provision stating that liability cannot be excluded for intent and gross negligence). In principle, no special notice (caps, bolded etc.) is required for limitation of liability germs to be effectively incorporated into a contract. Since in B2B-relationships the rules applicable on general terms and conditions (standard form contracts) are rather light, liability can, for example, be excluded or limited to a much greater extent than under German law. Finally, as noted above, fewer special laws exist in comparison to other bodies such as the European Union. How has the COVID-19 pandemic affected parties’ appetite for limiting liability in their commercial contracts? Limiting liability in commercial contracts
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