Swiss contract law disputes involve a citation structure that has a specific logic: the OR establishes the rule, BGer decisions interpret how that rule applies in practice, and cantonal court decisions show how it operates in the relevant jurisdiction. Getting the three levels right in the right order is what makes a legal submission on a contract question internally consistent and resistant to a procedural challenge.
This piece walks through the citation trail for a typical contract dispute scenario and explains why each level matters, where the common errors occur, and what a practitioner needs to verify before submitting.
Level One: The OR Provision
Every contract law argument in Swiss proceedings starts with a specific OR provision. General principles alone do not constitute a legal argument. A submission that says "the defendant violated good faith principles" without grounding that claim in a specific provision is incomplete. Good faith in Swiss contract law is anchored in Art. 2 ZGB (general principle) and in Art. 97, Art. 98, and Art. 247 OR depending on the specific conduct. Good faith as a standalone claim without provision citation is weak.
For a typical non-performance dispute, the citation chain starts at Art. 97 OR (liability for non-performance), with cross-references to Art. 99 OR (degree of fault) and Art. 107 OR (performance after deadline). If the non-performance involves a specific contract type, the special provisions apply: for sale (Art. 197 ff. OR), for work contracts (Art. 363 ff. OR), for services (Art. 394 ff. OR). These special provisions modify or supplement the general rules of Art. 97 ff. OR, and a submission that cites only the general provisions when special provisions exist is technically incomplete.
The first verification step is: have you identified the most specific OR provision that applies to this fact pattern, including any special contract type provisions?
Level Two: The BGer Decisions
BGer decisions interpreting OR provisions are the second level of the citation trail. They matter for two reasons: they establish how the Federal Tribunal has applied the provision in concrete circumstances, and they signal what legal principles a cantonal court will apply when reasoning from the same provision.
For a non-performance dispute, the relevant BGE decisions are those where the Federal Tribunal has interpreted the specific elements of Art. 97 OR: the meaning of "attributable non-performance," the standard for fault, the causation requirement, and the measure of damages. Each of these elements has been addressed in BGE decisions, and citing a BGE that directly applies Art. 97 in a similar context strengthens the submission's grounding considerably.
A BGE citation of the form BGE 130 III 591 means: volume 130 of the Federal Tribunal's published decisions, civil law part III, page 591. This is the most precise form. A shorter reference to BGer, Urteil vom 15. Januar 2020, 4A_XXX/2019 refers to an unpublished decision (BGer rather than BGE), with the date and the case number. Unpublished BGer decisions are citable and carry authority, but they are not collected in the BGE series and must be retrieved directly from the Federal Tribunal's website.
We are not saying you need a BGE citation for every point. Many straightforward application questions are so well settled in BGE that citing the provision and the general principle is sufficient. The BGE citation becomes necessary when the opposing party is likely to dispute the interpretation you are relying on, or when the application is novel enough that the court will want to see how the Federal Tribunal has approached similar situations.
Level Three: The Cantonal Court Layer
Consider a scenario: a Zurich-based general contractor disputes payment from a private client under a work contract (Werkvertrag, Art. 363 ff. OR). The contractor claims the client wrongfully refused acceptance of completed work. The Zurich Obergericht has addressed the acceptance procedure in work contract disputes several times in recent years, and its decisions reflect the specific procedural expectations of Zurich commercial court practice.
A submission in Zurich cantonal proceedings that cites only OR provisions and BGE decisions is formally complete but practically incomplete. The Zurich Obergericht applies the federal law through the lens of its own practice. If that court has held that a specific form of written notice is necessary for a valid refusal of acceptance in Zurich work contract practice, and if the opposing party can cite that Obergericht decision, the federal-only citation trail leaves the practitioner exposed.
Cantonal court decisions in Swiss civil proceedings are not binding precedent in the strict doctrinal sense. But they are persuasive authority on questions of local application, and they tell you what the court you are appearing before has previously found persuasive. A practitioner who treats cantonal court decisions as irrelevant to their Swiss contract dispute is missing the third level of a three-level citation structure.
The Direction of the Trail
The citation trail runs from broad to specific: federal provision, Federal Tribunal interpretation, cantonal application. It also runs from right to left in time: the cantonal decision should be consistent with the BGer decision, which should be consistent with the OR provision as currently in force. When any of these consistency checks fails, the trail has a problem.
Common failure modes:
- Citing a BGE decision that was decided under a previous version of the OR that has since been amended. The holding may no longer apply if the provision changed.
- Citing a cantonal decision from a different canton as if it were persuasive for the canton where proceedings are taking place. Cantonal courts in Geneva do not find Zurich Obergericht decisions persuasive authority on questions of how Geneva courts apply federal law.
- Citing a BGE decision from a different legal context (e.g., a BGE about insurance contracts) for a proposition about sales contracts. The principle may transfer, but it requires explicit argument, not silent citation.
Assembling the Trail Correctly
In practice, assembling the three-level citation trail for a contract question requires three distinct searches: the SR text for the OR provision, the BGE/BGer search for relevant decisions on that provision, and a cantonal court search for decisions from the relevant jurisdiction. Each search has different sources and different reliability characteristics.
The SR search is reliable and complete. The BGE search is reliable for published decisions but may miss recent unpublished BGer decisions that are relevant. The cantonal search is the least reliable: cantonal court decision databases vary in completeness, coverage period, and search functionality across the 26 cantons.
When we describe Silex Legal as a tool for assembling citation trails, this three-level structure is what we have in mind. The challenge is not just finding the federal provision. The challenge is finding the BGer decisions that interpret it and the cantonal court decisions that apply it, and presenting them in a structure that a practitioner can actually use in a submission without having to reconstruct the chain manually from three separate source databases.
