Introduction
Adopted in December 2024, the partial revision of the Swiss Code of Obligations relating to the work contract and the real estate sale entered into force on 1 January 2026. Although the reform does not fundamentally alter the overall framework of Swiss construction law, it introduces important amendments to the rules governing defect liability. In particular, it provides for a mandatory minimum period of 60 days for the notification of defects, establishes an imperative right to rectification, and revises the system of securities, notably by facilitating the use of substitute guarantees in place of the statutory tradesman’s and contractor’s lien.
This reform comes at a time when construction and real estate projects are becoming increasingly complex, thereby challenging the contractual balance between the parties. While freedom of contract remains a core principle of Swiss private law, experience has shown that it does not always ensure effective protection for customers and purchasers when dealing with experienced professional contractors.
By means of this revision, the legislator seeks to strengthen the position of economically weaker parties in the work contract and the real estate sale, while at the same time clarifying several key mechanisms of construction law, without calling well-established contractual practices into question. For stakeholders in the sector, these changes represent both a welcome clarification and a clear incentive to promptly adapt contractual documentation in order to anticipate the application of the new legal framework.
This article analyses the main contributions of the reform and their implications for contractual practice in the construction sector. Our lawyers remain at your disposal should you require further information.
Until now, Swiss law of obligations required the customer to give immediate notice of any defect discovered (“as soon as he becomes aware of them”) after delivery or completion of the work, failing which the work was deemed accepted as is within the meaning of Article 370 para. 3 of the Swiss Code of Obligations (work contract). This requirement of immediate notice, applicable both to the work contract and to the contract of sale (Art. 201 paras. 1 and 3 Swiss Code of Obligations), has however proven difficult to reconcile with the technical and organisational realities of the construction and real estate sale sectors, in which the identification and assessment of defects often require a certain amount of time. In practice, defects frequently appear progressively and require prior technical expertise before they can be reported in a sufficiently precise manner.
Aware of these difficulties, the Swiss Federal Supreme Court has consistently held in its case law that (Federal Supreme Court decision 4A_392/2023 of 24 April 2024, para. 5.1.2) “even though the law requires immediate notice, the buyer must be granted a short period of reflection enabling him to make his decision and communicate it to the seller. According to the case law, a notice of defects given two or three working days after their discovery satisfies the requirement of immediacy laid down by law (BGE 98 II 191 para. 4; BGE 76 II 221 para. 3); by contrast, notices given seventeen or twenty days after the discovery of the defects are considered late (cf. BGE 118 II 142 para. 3b; BGE 107 II 172 para. 1c). A defect is deemed to be discovered when the buyer has the necessary elements to be able to give the seller a notice that meets the legal requirements (BGE 118 II 142 para. 3b).”
According to the judges of Mon Repos, a notification made seven days after the discovery of the defects may, at most, still be regarded as admissible (Federal Supreme Court decision 4C.130/2006 of 8 May 2007, para. 4.2.2, with references).
According to the Federal Supreme Court as well (Federal Supreme Court decision 4C.130/2006 of 8 May 2007, para. 4.2.2), “part of the legal doctrine considers this case law to be strict and takes the view that excessive severity has no place in matters relating to notice of defects, in particular in view of the very serious impact on the legal position of the customer resulting from the forfeiture of all warranty rights (Theodor Bühler, Zurich Commentary, no. 48 ad Art. 370 Swiss Code of Obligations, with references to H. Becker and Hugo Oser/Wilhelm Schönenberger; Gauch, op. cit., nos. 2175–2176 and 2180–2181). Another author even considers the statutory regime to be outdated in light of current practice (Alfred Koller, Das Nachbesserungsrecht im Werkvertrag, 2nd edition, 1995, no. 83 p. 28). In applying Article 370 Swiss Code of Obligations, a certain degree of flexibility should therefore be shown, and the duration of the period of reflection should be assessed in light of all the circumstances of the specific case. Finally, in cases of doubt, the matter should be decided in favour of the customer, as a party to the contract who also deserves consideration, in particular where the customer is not a construction professional (Chaix, op. cit., no. 17 ad Art. 370 Swiss Code of Obligations; Gauch, op. cit., nos. 2177 and 2181). Case law follows this approach, as it emphasises, when assessing the requirements relating to the obligation to notify defects, the need to take account of the specific circumstances of each individual situation (BGE 131 III 145 para. 7.2).” (See also Federal Supreme Court decision 4A_303/2023 of 26 March 2024, para. 5.1).
It is therefore no coincidence that the SIA Standard 118 (General Conditions for Construction Works) very early on introduced a defect notification regime better suited to practice. From its earliest versions, it replaced the immediate notice requirement provided for in the Swiss Code of Obligations with a two-year period for reporting defects, running from delivery or completion of the work. This solution, considered more equitable and better aligned with the needs of the sector, has led to the almost systematic incorporation of SIA Standard 118 into the work contract, thereby establishing a clear contractual framework in areas where the statutory law was applied with restraint.
The revision of the law governing the work contract now introduces a statutory minimum period of 60 days for giving notice of defects, running from the delivery or completion of the work (i.e. at the time of the usual inspection pursuant to Art. 367 para. 1 Swiss Code of Obligations for apparent defects), or, in the case of hidden defects, from the moment the defect is effectively discovered (Art. 370 para. 4 Swiss Code of Obligations). By way of reminder, apparent defects are those that were detected or could have been detected during the regular and diligent inspection of the work, whereas hidden defects are those that were not recognisable at the time of delivery or completion (Federal Supreme Court decision 4A_303/2023 of 26 March 2024, para. 5.1).
The 60-day period applies to real estate works and is of a partially mandatory nature. Any contractual clause providing for a shorter period to the detriment of the customer is therefore deprived of effect for contracts concluded as of 1 January 2026, including where such a clause is contained in general terms and conditions.
However, the extension of the defect notification period does not release either the purchaser or the customer from their duty to mitigate damage. In accordance with the general principle of good faith (Art. 2 para. 1 Swiss Civil Code), they remain obliged to notify without delay any defect that is likely to worsen or to generate additional costs if not promptly addressed. This duty of diligence is intended to prevent abuse and to ensure that the statutory 60-day period is not used to justify harmful inertia.
It should be recalled that, in the case of defects fraudulently concealed—namely defects of which the contractor was actually aware at the time of delivery, which were intentionally withheld or concealed (dolus eventualis being sufficient), despite a duty to inform the customer, and which were unknown to the latter – the 60-day period does not apply (Federal Supreme Court decisions 4A_622/2012 of 18 January 2013, para. 3.2; 4A_97/2014 of 26 June 2014, para. 4.1; 4A_646/2016 of 8 March 2017, para. 3.1). In such cases, Article 370 para. 1 Swiss Code of Obligations provides that the contractor may not rely on the fact that notice of defects was not given or was given late, whether the defects are apparent or hidden. Article 203 Swiss Code of Obligations governing contracts of sale, including real estate sales, provides for the same rule as that applicable to the work contract (in cases where “the seller has wilfully misled the buyer”).
Notice of defects should ideally be given in writing, must effectively reach the responsible contractual partner, and must contain a sufficiently precise and detailed description of the alleged defects so that the contractor can understand what is being reproached in the work and can verify it himself (Federal Supreme Court decision 4A 82/2008 of 29 April 2009, para. 6.1). While the substantive requirements relating to defect notification remain unchanged, the new law provides the customer with increased legal certainty by replacing the obligation to act immediately with a clearly defined statutory time limit.
In our view, compliance with the 60-day period is satisfied by the dispatch of the notice of defects. According to legal doctrine, it is indeed justified, in the context of the work contract, to place the risk relating to the duration of transmission of the notice of defects on the contractor (Pierre Tercier / Blaise Carron, Les contrats spéciaux, 6th edition, Schulthess 2025, no. 3864).
It should also be noted that the new statutory framework raises issues in relation to SIA Standard 118. During the two years following delivery or completion of the work, the interaction between the revised law and the SIA standard does not give rise to any difficulty. Article 172 para. 2 SIA Standard 118 provides for a two-year defect notification period, which is more favourable than the statutory minimum of 60 days and is therefore fully admissible (Federal Supreme Court decision 4A_511/2014 of 4 March 2015, para. 4.3). Beyond this two-year period, however, SIA Standard 118 currently refers back to the statutory regime and once again requires immediate notice for defects arising thereafter, including hidden defects (Art. 179 para. 2 SIA Standard 118).
This solution is incompatible with the revised law governing the work contract. The new mandatory provisions of the Swiss Code of Obligations render ineffective, for contracts concluded as of 1 January 2026, those clauses of SIA Standard 118 that impose immediate notice of hidden defects. The statutory 60-day period running from discovery of the defect now prevails over any contrary contractual stipulation, including those based on the SIA standard (i.e. for hidden defects appearing after the two-year period). Amendments to SIA Standard 118 will therefore be necessary in order to eliminate the inconsistencies between the standard and the newly applicable legal framework.
Finally, the revision has no impact on the customer’s liability for damage resulting from defects that were not notified in due time. The customer remains liable to bear any damage that could have been avoided had the defect been addressed immediately, in accordance with the principle enshrined in Article 173 para. 2 SIA Standard 118. Although this rule is no longer expressly set out in the revised statutory text, the parliamentary debates unequivocally confirm its continued applicability.
In summary, where a work contract relates to a real estate work, notice of defects must be given within a period of 60 days. The general contractor benefits from the same period vis-à-vis its subcontractor, even where the latter has delivered a work located on land not owned by the general contractor. This rule is of a relatively mandatory nature, in that any agreement providing for a shorter period is null and void. SIA Standard 118 remains reserved (two-year period).
Where a movable work is incorporated into a real estate work in accordance with its intended normal use and where the defect affecting such movable work is the cause of defects in the real estate work, the same 60-day rule applies (Art. 367 para. 1bis lit. a and Art. 370 para. 4 lit. a Swiss Code of Obligations).
The same time limit also applies where the work consists of services provided by an architect or an engineer – such as plans, structural calculations or an expert report – which, in accordance with their intended normal use, serve as a basis for the construction of a real estate work and whose defect gives rise to defects in the real estate work (Art. 367 para. 1bis lit. b and Art. 370 para. 4 lit. b Swiss Code of Obligations). Caution is nevertheless required where, for example, defective plans do not materialise into a defect of the real estate work because they were discovered prior to execution. In such a case, notice of defects must be given immediately (see below) (Federal Supreme Court decision 4A_53/2012 of 31 July 2012, para. 6).
Finally, in the context of a work contract relating to a movable work that does not fall within the categories described above, notice of defects must be given “immediately”, that is to say without delay, as soon as the customer becomes aware of the defects (see the case law cited above).
With regard to the real estate sale contract, the same rules apply as those governing the work contract. The purchaser of a real estate property must notify defects within a period of 60 days. This time limit is of a relatively mandatory nature, any agreement to the detriment of the purchaser being null and void (Art. 219a para. 1 Swiss Code of Obligations). The same applies where defects affect a movable item incorporated into a real estate work in accordance with its normal use and where such defects are the cause of defects in the real estate work (Art. 201 para. 4 Swiss Code of Obligations).
In the case of apparent defects, the starting point of the 60-day period is the time of the usual inspection; in the case of hidden defects, the period runs from their effective discovery. Fraudulently concealed defects remain reserved (Art. 203 Swiss Code of Obligations). In order to assess compliance with the time limit, reference must be made to the date on which the notice of defects is dispatched (Pierre Tercier / Blaise Carron, op. cit., no. 732).
II) The Right to Rectification in Real Estate Sale (Art. 219a para. 2 Swiss Code of Obligations) and in the Work Contract (Art. 368 paras. 2 and 2bis Swiss Code of Obligations)
Under the law in force prior to 1 January 2026, in the context of a real estate sale, the buyer may assert against the seller, within the framework of the warranty for defects, only a claim for a reduction of the purchase price (price reduction claim) or for rescission of the contract (rescissory claim) (Art. 205 para. 1 Swiss Code of Obligations). Depending on the circumstances, the buyer may also have a claim for damages (Art. 208 paras. 2 and 3 Swiss Code of Obligations or Arts. 97 and 101 Swiss Code of Obligations). Finally, in certain situations, in particular where fungible goods are concerned, the buyer may demand other acceptable goods of the same kind (Art. 206 Swiss Code of Obligations). It follows from the above that the purchaser has only three alternative remedies in the event of defects, namely rescission of the sale, reduction of the price and, where applicable, replacement of the item. By contrast, the purchaser cannot demand rectification of the defect (Federal Supreme Court decision 4A_446/2015 of 3 March 2016, para. 3.2). This solution is explained by the fact that, unlike in the work contract, the seller does not necessarily have the technical skills required to repair the item.
This position has been the subject of substantial criticism in legal doctrine, notwithstanding the fact that Swiss law provides for such a right in the context of international sales of goods (Art. 46 para. 3 CISG). It should also be noted that the Federal Council has advocated a modernisation of the law governing warranty rights for movable sales, in particular in order to align Swiss law with the rules applicable within the European Union.
In the work contract, by contrast with the contract of sale, Article 368 para. 2 Swiss Code of Obligations allows the customer to require the contractor to repair the work at its own expense. In practice, however, it is common for the parties to exclude the developer’s warranty and to replace it with an assignment of warranty rights against the various trades involved in the construction (subcontractors). This system has the effect of complicating the mechanism for remedying defects for the customer.
The revision of the Swiss Code of Obligations now expressly enshrines a right to rectification of defects both in the context of real estate sale and of the work contract. As regards sale, the buyer of a property comprising a construction to be erected (for example, in the case of an off-plan real estate sale) or completed less than two years prior to the sale now benefits from a statutory right to have defects affecting the construction remedied at the seller’s expense (Art. 219a para. 2 Swiss Code of Obligations). For all other aspects, the law refers to the regime governing the work contract, which, as noted above, recognises a right of the customer to have the work rectified (Art. 368 para. 2 Swiss Code of Obligations).
The reform goes even further than the existing law governing the work contract, in that it elevates the right to free rectification to a semi-mandatory rule where the defect concerns a construction element (Art. 368 para. 2bis Swiss Code of Obligations). As a result, any clause agreed in advance that restricts or excludes the right to defect rectification is null and void.
Within this new framework, the assignment by the contractor to the customer of warranty rights against subcontractors loses all economic and legal relevance. Since the contractor directly bears the burden and the risk associated with remedying defects, such an assignment is not only unnecessary but may also compromise the contractor’s recourse against its subcontractors where the customer demands the performance of corrective works. This evolution of the work contract represents a significant shift in the allocation of risks as previously envisaged by the legislator.
The same regime applies in the context of real estate sale. Any contractual clause providing for a restriction or exclusion of this right to rectification is null and void for contracts concluded as of 1 January 2026, provided that the defect concerns a new construction or a construction less than two years old.
That said, the terminology used by the legislator must be examined with care.
According to the Federal Council’s Message, the following conditions must be met in the context of sale:
“First, the object of the contract must be a real estate property with a construction. The notion of real estate property derives from Article 655 Swiss Civil Code. It covers parcels of land (para. 2 no. 1), distinct and permanent rights recorded in the land register (para. 2 no. 2), and co-ownership shares in immovable property (para. 2 no. 4). Article 655 Swiss Civil Code therefore also covers the purchase of a construction together with a building right, provided that such building right is entered in the land register as a distinct and permanent right (Art. 779 para. 3 Swiss Civil Code). Condominium ownership (Art. 712a para. 1 Swiss Civil Code) also falls within the scope of Article 219a para. 2 of the revised Swiss Code of Obligations. Pursuant to Article 667 para. 2 Swiss Civil Code, a construction is deemed to be any infrastructure firmly and permanently affixed to the ground. Movable structures (Art. 677 Swiss Civil Code) do not meet this definition, nor do earthworks. Contrary to the requests of certain participants in the consultation process, the concept of ‘real estate work’, which is specific to the provisions governing the work contract and foreign to those governing the contract of sale, has not been used. Introducing a new concept would inevitably have given rise to further issues of delineation.
Second, the right to rectification is to apply only to real estate properties on which a construction was erected less than one year [ultimately two years, as decided by the legislator] prior to the sale, or on which a construction has yet to be erected. This ensures that the regulation applies solely to the acquisition of a new construction and that no right to rectification exists for older constructions. Only persons acquiring a new construction may be treated as customers. For constructions that have existed for a longer period, there is generally no exclusion of the seller’s liability in exchange for warranty rights against subcontractors, and even where relatively extensive exclusions of liability do exist, they are not, in themselves, equally misleading for the purchaser. The one-year period begins to run once the construction works have been completed and the work is, for the most part, in the condition promised in the contract of sale. Minor or ancillary works, as well as any rectification works, do not in principle affect the moment at which the works are deemed completed. If the required condition has not yet been achieved, the conditions for application of the provision are in any event met, since the construction will ‘still have to be erected’. In such cases, the contract will either be a mixed contract or a contract for the sale of a future thing (see in this regard section 1.1.1.2). In both cases, the draft provides for a right to rectification in respect of the parts of the construction that still have to be carried out. The right to rectification is not required to be exercised within the one-year period.”
With regard to the work contract, the Federal Council’s Message further states that “the right to rectification will only be mandatory under certain conditions. On the one hand, it will apply where defects are discovered in a construction, and not in a real estate property or a real estate work in general (with regard to the notion of construction, see the commentary on Art. 219a para. 2 of the draft Swiss Code of Obligations), contrary to what certain participants in the consultation procedure had requested. This distinction is particularly important in relation to contracts of sale, but it is also relevant for work contracts, for example where earthworks are required. The protected purpose of the provision does not appear to require its extension to real estate works that do not include a construction. Moreover, the provisions governing the contract of sale may only concern a construction and not a real estate work (see the commentary on Art. 219a para. 2 of the draft Swiss Code of Obligations). A certain degree of parallelism is ensured by also relying on the notion of construction in the provisions governing the work contract.”
It follows that, going forward, an irrevocable right to free rectification will apply to all work contracts falling within the field of construction. This legislative development is in line with SIA Standard 118 and largely reflects its underlying philosophy. Article 169 para. 1 SIA Standard 118 provides that, as a first step, the customer may only require the elimination of defects within a reasonable period, subject to any claims for damages under Article 171 SIA Standard 118. The customer is relieved of this obligation only if the contractor manifestly appears incapable of remedying the defects or refuses to do so after having received notice of defects (Federal Supreme Court decision 4A_151/2016 of 21 June 2016, para. 3.1). If the customer fails to first grant the contractor the opportunity to attempt rectification, the customer is entirely deprived of its warranty rights for defects, which are forfeited (BGE 116 II 305, para. 3a).
As regards the relationship between Articles 219a para. 2 Swiss Code of Obligations (real estate sale) and 368 para. 2bis Swiss Code of Obligations (work contract), it should be noted that a contract for the purchase of a plot of land on which a construction is already erected at the time the contract is concluded undoubtedly constitutes a real estate sale contract within the meaning of Articles 216 et seq. Swiss Code of Obligations. Whether the construction is new or old has no material impact on the legal classification of the transaction.
The situation is more complex where the acquisition concerns a real estate property on which a construction is planned but does not yet exist at the time the contract is concluded (BGE 117 II 259, para. 2b). According to case law, a contract of sale also exists where a “turnkey” house is delivered on land owned by the contractor, provided that the agreed lump-sum price also includes the price of the land (BGE 94 II 161, para. 1).
By contrast, a mixed contract (real estate sale contract and work contract) exists where the seller undertakes towards the buyer to construct, convert, complete or renovate a house on the land sold. In such a scenario, where the contract provides that ownership of the land is to be transferred immediately after conclusion of the contract, acquisition of ownership is no longer required by virtue of the principle of accession, and it is no longer possible to conclude a real estate sale contract. In such cases, the warranty for defects of the building is governed in its entirety by the rules applicable to the work contract (Federal Supreme Court decision 4A_540/2022 of 19 December 2023, para. 2.1).
The situation is different only where the buyer exercises no influence whatsoever over the construction process (including with regard to the choice of materials or finishes). In such a case, the transaction qualifies as a sale of a future thing, as the seller would in any event have constructed and sold the building in that form.
It is not always easy to classify a legal transaction in light of these criteria. The outcome of such a qualification may indeed prove uncertain, particularly since the parties enjoy a certain degree of latitude to deliberately steer the legal nature of the contract through the structure and content of the arrangements they adopt.
For this reason, and in order to prevent any circumvention of the law, real estate sale contracts that include an obligation to build are now partially subject to the same rules as those governing the work contract. In practice, this particularly affects general and total contractor arrangements. As a result, the legal classification of contracts and the interaction between Articles 219a para. 2 Swiss Code of Obligations (real estate sale) and 368 para. 2bis Swiss Code of Obligations (work contract) no longer give rise to difficulties. Buyers who acquire land on which a new construction is or will be erected, or which was constructed no more than two years prior to the sale, enjoy rights comparable to those of a customer. They are thus granted an inalienable right to rectification in respect of any defects.
III) The Limitation Period (Art. 219a para. 3 Swiss Code of Obligations: real estate sale – Art. 371 para. 3 Swiss Code of Obligations: work contract)
In the context of the work contract, the five-year limitation period applicable to construction defects, as provided for both by the Swiss Code of Obligations and by SIA Standard 118 (General Conditions for Construction Works) (Art. 180), remains unchanged. The revision nevertheless expressly clarifies that any contractual provision seeking to shorten this period to the detriment of the customer is prohibited, as the limitation period now has a partially mandatory character (Art. 371 para. 3 Swiss Code of Obligations). The limitation period begins to run from the delivery or completion of the work, irrespective of the origin of the defect (for example, including hidden defects). Real estate works include not only real estate constructions, namely works that are durably affixed to the ground, but also real estate works that do not qualify as constructions (for example excavation works).
It should be noted that the limitation period applicable vis-à-vis the contractor and vis-à-vis the architect or engineer who participated in the execution of the work is likewise five years (Art. 371 para. 2 Swiss Code of Obligations).
The same applies to movable works incorporated into a real estate work (Art. 371 para. 1 Swiss Code of Obligations). In such cases, the limitation period begins to run upon delivery or completion of the movable work, and not upon delivery or completion of the real estate work.
With regard to the contract of sale, claims under the warranty for defects affecting the real estate property are also subject to a five-year limitation period running from the transfer of ownership (Art. 219a para. 3 Swiss Code of Obligations). This rule now expressly applies to all defects affecting the real estate property, including undeveloped land, thereby putting an end to the ambiguity that existed under former Article 219 para. 3 Swiss Code of Obligations, whose wording referred solely to defects of a building (BGE 104 II 265, para. 3). Any agreement providing for a shorter limitation period is null and void.
By contrast, and as a reminder, a clause entirely excluding the warranty (and therefore the limitation period) remains permissible, except in the case of real estate properties comprising a construction that is yet to be erected or that was erected less than two years prior to the sale (see above).
Finally, as in the context of the work contract with respect to the contractor, the seller may not rely on the limitation period if it is established that the seller intentionally misled the buyer, dolus eventualis being sufficient (Art. 210 para. 6 Swiss Code of Obligations). In such cases, the limitation period is ten years.
IV) Statutory Tradesman’s and Contractor’s Lien and Substitute Guarantees (Art. 839 para. 3 Swiss Civil Code)
Swiss construction law affords tradesmen and contractors effective protection through the statutory lien (Arts. 837 et seq. Swiss Civil Code), which allows them to secure claims arising from the work contract directly against the real estate property to which their services relate. This mechanism, provided for by the Swiss Civil Code, is characterised by its automatic and in rem nature: it depends neither on a prior agreement nor on the debtor’s solvency and grants the creditor, including subcontractors, a privileged position in the event of non-payment.
In order to limit the interference with property rights, the legislator nevertheless accepted from the outset that the owner may avoid the registration of such a lien by providing equivalent security. In the spirit of the law, this alternative was intended to preserve the protection of creditors while offering a degree of flexibility to owners, in particular in projects subject to financing or marketing constraints.
In practice, however, this possibility has largely remained theoretical. Case law has gradually required that substitute security reproduce identically the effects of the statutory lien, both in terms of amount and duration (Federal Supreme Court decision 5A_838/2015 of 5 October 2016, paras. 4.4.2 and 4.4.3). This requirement has revealed a structural difficulty: default interest, which is not subject to any temporal limitation under the law of obligations, by its very nature makes it impossible to determine ex ante the scope of the security required. Bank guarantees, which are inherently limited in both time and amount, were therefore unable to meet the standards set by the courts.
In practical terms, the owner, being unable to offer legally sufficient substitute security, was forced to accept the registration of the statutory lien, even where this proved economically disproportionate or incompatible with the structure of the project.
The revision of the Swiss Civil Code introduces, in Article 839 para. 3 Swiss Civil Code, a ten-year time limit for the coverage of default interest, thereby giving concrete substance to the notion of sufficient security. The amount of the guarantee thus becomes calculable, making it once again possible to rely on bank guarantees or other assessable real securities.
This development does not undermine the protection afforded to tradesmen and contractors, whose claims remain fully secured within a time horizon consistent with market practice. It does, however, restore a better balance between the interests involved by offering owners a credible alternative to the registration of a statutory lien, which is often perceived as an obstacle to financing or to the transfer of the real estate property.
V) Transitional Law and Required Amendments to the Work Contract and the Real Estate Sale Contract
The revised law contains no specific transitional provisions. The general rules set out in the final title of the Swiss Civil Code (Arts. 1 to 4 Final Title Swiss Civil Code), which enshrine the principle of non-retroactivity of the law, therefore apply. As a result, all contractual arrangements concluded under the former law – whether express or tacit, and irrespective of whether they are dispositive or mandatory in nature – remain governed by that law, in particular with regard to the rules on warranty for defects.
It follows that the revision of the law governing warranty for defects in the context of the work contract does not apply to construction contracts concluded before 31 December 2025, even where performance of the works has not yet commenced, unless there is an express reference to the revised provisions or a subsequent amendment agreed between the parties. Conversely, for contracts concluded as of 1 January 2026, any clause that is contrary to the mandatory provisions of the new law is null and void and without legal effect.
Beyond the statutory provisions themselves, significant adjustments are required to many of the contract templates and general terms and conditions commonly used in practice, in order to avoid the application of void clauses and the resulting legal imbalances.
Particular attention should be paid to the following aspects:
- obligations relating to rectification/repair may no longer be contractually restricted, as they are now of a mandatory nature;
- the time limit for giving notice of defects may not be shortened;
- limitation clauses providing for periods of less than five years must be removed from contracts;
- the new rules of the Swiss Civil Code must be applied when calculating the security relating to the statutory tradesman’s and contractor’s lien;
- references to SIA Standard 118 (General Conditions for Construction Works) must be reviewed to ensure their compatibility with the revised statutory provisions.
As noted above, the new statutory provisions give rise to several inconsistencies with SIA Standard 118, which will require both normative and contractual adjustments.
In particular, the first sentence of Article 179 para. 2 SIA Standard 118 – which requires defects to be notified “immediately after their discovery” – has become incompatible with the revised law. While the cross-references to Articles 178 para. 2 and 179 paras. 3 and 4 SIA Standard 118 partially mitigate its effects, they do so at the cost of reduced clarity. An amendment of this provision will therefore be necessary in the context of the next revision of the standard.
The annexes to SIA Standard 118 will likewise need to be brought into line with the new statutory framework.