Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

Grebieniow, Aleksander (30 June 2016). Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law (Unpublished). In: Fourth Biennial ESCLH Conference. Culture, Identity and Legal Instrumentalism. Gdansk (Danzig). 28.06.-1.07.2016.

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This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.

Item Type:

Conference or Workshop Item (Paper)

Division/Institute:

02 Faculty of Law > Department of Legal Theory and History of Law > Institute of Roman Law

UniBE Contributor:

Grebieniow, Aleksander

Subjects:

300 Social sciences, sociology & anthropology > 340 Law

Language:

English

Submitter:

Linda De Maddalena

Date Deposited:

05 Jul 2016 14:51

Last Modified:

06 Mar 2019 09:38

URI:

https://boris.unibe.ch/id/eprint/82630

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