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Yayıncı:
On İki Levha Yayıncılık
Yayın tarihi:
Kasım 2017
ISBN:
978-605-152-506-8
Baskı:
1
On İki Levha Yayıncılık
Yayın tarihi:
Kasım 2017
ISBN:
978-605-152-506-8
Baskı:
1
Yazarlar:
Başak Baysal, Emrehan İnal
Editör:
Başak Baysal, Emrehan İnal
Aşağıda bir kısmını gördüğünüz bu dokümana sadece Profesyonel + pakete abone olan üyelerimiz erişebilir.
RECENT SWISS CASELAW DEVELOPMENTS IN CONSTRUCTION CONTRACT LAW
Franz WERRO*…
The present paper provides an overview of recent Swiss caselaw on construction law…
This part will primarily focus on the legal framework. The standard terms for contracts…
A. The Statutory Framework and its Critical Assessment
The Code of obligations provides the legal framework in its general part. Specifically,…
1. The Two Legal Types of Contracts for Independent Services
In construction matters, the typical contracts concluded with independent contractors…
a. The Contract for Work
In a contract for work (art. 363 et seq. CO) (Werkvertrag in German or contrat d’entreprise in…
In the two last situations, the price will be determined based on the value of the…
In the world of construction, this contract between the owner and the contractor…
b. The Contract for Services
In a contract for services (Auftrag in German or mandat in French),…
In accordance with the applicable professional standards, he agrees to provide a…
In terms of contract remedies, the owner can seek damages or price reduction if there…
2. Some Shortcomings in the Legal Framework
Several activities clearly fall under the scope of the contracts just described.…
a. The Broad Definition of Work Within the Meaning of Art. 363 CO
The development of technologies and the multiplication of services of all sorts have…
At the same time, however, the criterion used to distinguish the two contracts remains…
For the Federal Tribunal, the difference between the two contracts lies in the possibility…
In addition to the difficulty of delimitating the scope of these legal rules, the…
b. The Legal Transformation of the Scope of the Contract for Services
Another shortcoming is linked to the origins of the contract for services: historically,…
With the exception of the contract governing independent long-term representation…
B. Current Law Reforms and Other Proposed Changes
The Federal Tribunal’s unsatisfactory caselaw has led the Swiss parliament to propose…
1. Some New Standard Terms
Obviously, the standard terms adopted by the Swiss Society of Engineers and Architects…
The most important changes in these standard terms include a revision of the liability…
Regarding the notice period, the new terms provide a sixty-day period for all construction…
2. Reforms Regarding the Contract for Work and the Rules Governing the Statute of Limitations
The Swiss parliament is currently discussing two proposed amendments of the Code…
a. The Amendments Regarding the Contract for Work
A legal reform regarding the contract for work that aims at improving the protection…
As previously mentioned, the caselaw governing liability for defects is particularly…
Furthermore, the solution is not satisfactory because the contractor does not have…
In response, the motion Hutter, inspired by Italian law, aims at introducing a sixty-day…
Additionally, in order to enable the owner to exercise his warranty rights (Gewährleistungsrechte in…
According to Stöckli, other protection rules should be drafted in favor of the buyer…
b. The Amendments Regarding the Rules Governing the Statute of Limitations
In addition, a revision of the provisions of the limitation period is planned, aiming…
Furthermore, according to the Federal Council’s statements, the reform aims at abolishing…
The debate on the reform of these rules was suspended until August 2016 in order…
3. The Revision of Art. 404 of the Code of Obligations
As mentioned above, the stated mandatory nature of art. 404 CO has triggered tremendous…
Following the criticism of some authors, Representative Barthassat filed a motion…
Even if, overall, the preliminary draft would improve the current legal regulation,…
According to the view presented here, art. 404 par. 1 CO refers to the unilateral…
The distinction is important, since it defines whether both parties effectively have…
Perhaps even more problematic than this point is the total absence of an explicit…
By contrast, parties may negotiate the duration of their contract in other contracts…
Interested groups have been able to express their opinion on the preliminary draft…
II. Selected Aspects of Recent Caselaw
The second part of this paper aims at providing an overview of recent caselaw in…
A. Some Recent Developments on Contracts for Work and for Services
Recently, the Federal Tribunal decided three cases that deserve a presentation here.…
1. Regarding the Contract for Work (Art. 363 et seq. CO)
Two decisions of the Federal Tribunal regarding the contract for work have attracted…
a. The Right to Withdraw from the Contract (Art. 97 CO)
The first case concerns the right to withdraw from the contract on the basis of art. 97 CO.i. The Facts
In this case, the facts were as follows. B. and C., the owners, hired a general contractor…
ii. The Decision
In its decision, the Federal Tribunal analyzed whether: (i) the impossibility of…
First, the Federal Tribunal insisted on the fact that the impossibility to build…
Furthermore, the court insisted on the fact that the lex specialis dealing with an impossibility arising from an event occurring within the owner’s sphere (art. 378 CO) was not applicable in the present case. Instead, the contractor, experienced in construction projects, should have informed the owners according to art. 365 par. 3 CO that the construction
As art. 119 CO regulates the cases of faultless impossibility, the court decided…
In the present case, B. and C. had validly exercised their right, since they refused…
iii. A Brief Comment
In this court ruling, the Federal Tribunal held for the first time that the creditor…
According to the doctrine of transformation of the obligations (Umwandlungstheorie),…
With this decision, the Federal Tribunal seems to be gradually assimilating the Swiss…
KAYNAKÇA
LIABILITY FOR CONSTRUCTION WORKS UNDER THE MACEDONIAN LAW
