Chapter 8. LAW of CONTRACTS

The actual text of the Swiss Federal Code of Obligations (CO) relating to contracts and tort was adopted on March 30, 1911, then presented as a supplementary part of the Civil Code (Zivilgesetzbuch, voted December 10, 1907), both entered in force as per January 1, 1912. Its text is to a large extent based on its predecessor, the ancient CO as adopted in 1881 and in force since January 1, 1883 (here "aCO"). This text is worth being mentioned not only because it is in some details preferable to the actual version but because its creation preceded that of the German Civil Code (Bürgerliches Gesetzbuch, BGB) by almost two decades and necessarily -influenced the latter. The characteristics of the CO recommend it as an example, representing the best of 19 century Civil Law tradition but being less complicated and more straightforward than the German code, which alone by its being focused on the artificial notion of "Rechtsgeschäft" is not easy to be absorbed by lawyers of nonGerman background. Therefore the influence demonstrated by the CO is remarkable in the Spanish speaking area and in the Far East. Whilst the Japanese Codification of 1898 in most respects follows the German BGB, the influence of the Swiss CO is clearly predominant in the traditional Chinese Code (actually at least in force in Taiwan, Book II), the Code of the Republic of South Korea (Part III) and the Code of Thailand (Book II). In addition it may be mentioned that in 1926 under Kemal Atatürk Turkey adopted the Swiss Civil Code including the CO without major modifications. The contract law of the CO is, as in all areas of the continental Civil Law, based mainly on the tradition of Roman Law. The CO in particular is influenced mostly by the German "doctrine of the Pandects" of the 19 century, therefore the BGB is the next of kin to the Swiss CO. The Romanist basis is still of importance for the handling of the CO not only for full understanding of the intentions of the legislator at the time of its creation, but also as a basis for future modernization and improvement of the CO which in some respect represents Roman Law oversimplified by the 19 century literature: A look into the texts of ancient Rome (the Corpus Iuris of Iustinian) or the Romanist texts of the years 1200 to 1800 can provide considerable inspiration for the solutions to come.