The Swiss Code of Obligations of 1881 and the law of companies

From cantonal company law to federal unification

The exchange could trade only in securities that the law allowed to be created. Before 1883, the law of companies was cantonal. The Historisches Lexikon article on company law, by Roland Ruedin, explains that the Helvetic Republic had the authority to unify company law but did not use it, and that the cantons developed their own legislation after 1803. The western Swiss cantons adopted or adapted the French Code de commerce of 1807. The eastern cantons followed different paths. Bern included rules on partnerships in its civil code of 1824 to 1830. The Zurich private law code of 1853 to 1855 contained provisions on companies limited by shares, which Lucerne adopted in 1857, Graubünden in 1862 and Schaffhausen in 1864. Some cantons required state approval for the formation of a company.¹ The Zurich code, the Privatrechtliches Gesetzbuch drafted by Johann Caspar Bluntschli, was among the most influential private law codifications in German-speaking Switzerland.²

A patchwork of cantonal company laws was an obstacle to a national securities market. A railway or a bank incorporated in one canton issued shares whose legal nature depended on the law of that canton, while investors in other cantons faced unfamiliar rules on liability, voting and transfer. After 1848 the need for a uniform federal commercial and exchange law became pressing, as the Historisches Lexikon article on the law of obligations by Lukas Gschwend points out.³ The Federal Constitution of 1848 did not give the Confederation the necessary competence. That came only with the revised Constitution of 1874, which gave the federal legislator power over the law of obligations, including commercial law and the law of bills of exchange.

The Code of Obligations of 1881

The work of codification had begun long before 1874. Walther Munzinger, professor at the University of Bern, drafted a commercial code on the basis of French and German models and presented his first proposal in 1864. By 1871 it had been expanded into a general law of obligations. After Munzinger’s death in 1873, the Zurich professor Heinrich Fick revised the draft. Adopted by the Federal Assembly on 14 June 1881, the Swiss Code of Obligations entered into force on 1 January 1883.⁴ The Code covered the formation and performance of contracts, the individual types of contract, commercial companies, the commercial register, business names and securities (Wertpapiere). With it Switzerland obtained a unified law of commerce that did not separate civil from commercial law, an approach that the Historisches Lexikon counts among the special features of the Swiss codification.

For the exchange the most important part of the Code was its company law. The Historisches Lexikon describes the company law of 1881 as liberal. It no longer required state approval for the formation of a company limited by shares and granted broad freedom of contract.⁵ Any group of founders who met the statutory requirements could create an Aktiengesellschaft by entry in the commercial register. The federal commercial register and its official gazette, the Schweizerisches Handelsamtsblatt, whose publication began in 1883, gave the public access to the basic facts about each company.⁶ Shareholders, creditors and the exchange could now rely on a single federal set of rules for the organisation of companies, the rights of shareholders and the publication of their accounts.

The Code and the supply of listed securities

The liberal company law of 1881 coincided with the beginning of state-authorised trading in Zurich in 1884. Together the two developments created the legal framework in which the market of the following decades could grow. Banks, insurance companies, electricity undertakings, machine builders and textile firms could now be organised as companies limited by shares under a single federal law, and a listing allowed them to widen the circle of their investors. The Code also unified commercial law, the law of bills of exchange and the law of securities for the whole country, so that the instruments traded on the exchange had the same legal character wherever the issuer was domiciled.⁷

The liberal approach had a price. Company law of 1881 contained few rules on disclosure to investors at the moment of issue and left prospectuses without the detailed regulation that later securities laws would require. Protection against misleading issues was left largely to the general law of contract and tort, to the reputation of the underwriting banks and to the cantonal regulation of intermediaries. The combination of a liberal federal company law with cantonal regulation of the exchange created a division of labour that lasted until the late twentieth century. The Confederation regulated the issuer, while the cantons regulated the market. Only the federal Stock Exchange Act of 1995 brought these two strands together at federal level. The scholarly commentary on the modern law still notes that the Stock Exchange Act created a special regime for listed companies, bringing Swiss law closer to the American distinction between company law and securities law.⁸

The revision of 1911

The Code of 1881 remained in force for almost thirty years. When the Swiss Civil Code of 1907 was prepared, the law of obligations was revised and integrated into it as its fifth part. The revising statute is the Federal Act of 30 March 1911, which entered into force on 1 January 1912 together with the Civil Code.⁹ The revision concentrated on the general part and the individual contracts. According to the Historisches Lexikon, most of the company law rules of 1881 passed unchanged into the version of 1911. The fundamental reform of company law had to wait until the revision of 1936.¹⁰ For the Zurich exchange before 1914, the legal framework of the listed company therefore remained that of 1881 throughout the period covered by this chapter.

Notes

1. HLS, Roland Ruedin, “Gesellschaftsrecht”, version of 30.01.2006, https://hls-dhs-dss.ch/articles/027305/2006-01-30/. ↩
2. Heinrich Mitteis, “Bluntschli, Johann Caspar”, Neue Deutsche Biographie 2 (1955), 337–338, https://www.deutsche-biographie.de/sfz4832.html, which calls Bluntschli’s code, in force from 1853, a masterpiece and the forerunner of the Swiss Civil Code. Kurt Siehr, “Swiss Code of Obligations (OR)”, Max Planck Encyclopedia of European Private Law, https://max-eup2012.mpipriv.de/index.php/Swiss_Code_of_Obligations_(OR), describes the code of 1853/55 as a model for other cantons. ↩
3. HLS, Lukas Gschwend, “Obligationenrecht (OR)”, version of 14.08.2009, http://www.hls-dhs-dss.ch/textes/d/D9611.php. ↩
4. Kurt Siehr, “Schweizerisches Obligationenrecht”, in Handwörterbuch des Europäischen Privatrechts (2009), online edition, https://hwb-eup2009.mpipriv.de/index.php/Schweizerisches_Obligationenrecht. ↩
5. HLS, Ruedin, “Gesellschaftsrecht”, https://hls-dhs-dss.ch/articles/027305/2006-01-30/. ↩
6. E-Periodica, “Schweizerisches Handelsamtsblatt = Feuille officielle suisse du commerce = Foglio ufficiale svizzero di commercio (1883–2001)”, https://www.e-periodica.ch/digbib/volumes?UID=sha-001. ↩
7. HLS, Lukas Gschwend, “Obligationenrecht (OR)”, version of 14 August 2009, https://hls-dhs-dss.ch/de/articles/009611/2009-08-14/, on the inclusion of commercial law and the law of bills of exchange, of securities and of the commercial register in the Code, which entered into force in 1883. ↩
8. Manuel Ulrich and Rolf Röllin, “Die Schweizerische Aktiengesellschaft”, in Lukas Gschwend and Martin Löhnig (eds.), Wirtschaft und Recht im Spannungsfeld (University of St. Gallen), p. 28, https://www.alexandria.unisg.ch/server/api/core/bitstreams/8e35e410-1e0c-4c96-8657-5a1aef08c35b/content. ↩
9. Sebastian Weber, Die Revision des schweizerischen Obligationenrechts von 1911/1912 (Berlin: Duncker & Humblot, 2023), reading sample, https://www.duncker-humblot.de/_files_media/leseproben/9783428587841.pdf. Weber notes (p. 15) that the old OR had become in need of reform both in formal and in substantive respects. ↩
10. HLS, Ruedin, “Gesellschaftsrecht”, https://hls-dhs-dss.ch/articles/027305/2006-01-30/. The 1936 revision, based on Eugen Huber’s draft of 1919 and Arthur Hoffmann’s proposal of 1923, also introduced the limited liability company (GmbH). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.