The expression of intent can be express or tacit.

• Express means you give your agreement e.g. in writing, by e-mail or orally.
• Tacit means that it can be assumed that you consent based on your behaviour (e.g. nodding or starting work).

An agreement is required on the main points of the contract such as the service to be provided and the price. Otherwise, no contract is concluded. The clearer and more binding the offer, the better. Now you also have the option of negotiating and providing an offer which is right for you.

Both parties must be in a position to conclude a contract

Natural and legal persons with the capacity to act can conclude contracts.

What exactly does that mean?

‘Natural persons’ are people, ‘legal persons’ are associations made up of people and recognised in law.

• A natural person with the capacity to act is an adult – meaning a person aged 18 or over – capable of judgement.

• • The law says that any person is capable of judgement, unless they do not have the ability to act reasonably, as they are underage, are mentally disabled, have a mental disorder, are intoxicated or are in similar circumstances is not capable of judgement (Swiss Civil Code Art. 12 to 16).
• Legal persons are associations, foundations and companies (e.g. limited liability companies with the status of GmbH or AG, and co-operatives).

Note: simple societies are not legal persons, meaning that the members of societies commit themselves personally (e.g. organising committees of events, bands etc.).

→ E.g.: if your organising committee cannot pay the fee for the act booked, each member is liable directly.

There is no requirement as to the form of contracts in principle. Therefore, an oral agreement also constitutes a contract.

→ However, we recommend that you always conclude a written contract so that you have a guarantee whatever happens.

A contract may contain any content – within the limits of the law. There are already legal stipulations for certain types of contract such as employment, rental or purchase contracts.

Note: if the contract must be made in writing under law, all parties are required to sign. This also applies to subsequent amendments to the contract (Code of Obligations Art. 12 – 13). Signature means the party’s own physical signature on paper or an authenticated digital signature.

However, most contracts constitute an amalgamation of different types of contract.

Exceptions to the freedom to determine the content of contracts apply in the case of binding law (e.g. employment or rental law), where the content is impossible (e.g. selling a house on Mars) or illegal (e.g. selling heroin), and where it violates public morality or personal rights (employment contract where termination is only possible after 10 years, Code of Obligations 19 f). Such contracts are considered invalid in full or in part.

A material – i.e. fundamental – error occurs for example if another contract was intended (rental instead of purchase contract), the wrong object or person was understood (antique vase instead of modern vase), there is a mistake regarding the scope of the service and compensation (price for Maserati Turismo CHF 12,700) or there is an error concerning the basis for fulfilment (car purchase turns out to be stolen). This makes the contract non-binding for the person concerned.

Note: it is often difficult to prove a material lack of intent and parties have the right to conclude bad contracts.

Sometimes, it is no longer clear how a contract is to be understood after a given period of time. In principle what counts is what the parties both meant or intended and not the incorrect terminology or expression. An employment contract remains an employment contract even if the parties have termed it an ‘assignment’. If the parties cannot come to a common agreement or it becomes clear subsequently that their understanding of its content was fundamentally different, a court must take a decision on the interpretation of the contract and clarify whether a material error has occurred.

A contract comes to an end through fulfilment, the end of the relevant time period (temporary contracts), termination or an agreement to end it.

A contract for a performance can be concluded as an employment contract, a work contract, an assignment or a hybrid form. Different rules apply depending on the type of contract.

• Employment contracts: if the employee cannot work because of a failure by the employer, the wage must nonetheless be paid (exception: employee finds a replacement contract, which is paid).

Meanwhile, if the employee cannot work due to illness or accident, as long as the legal requirements are fulfilled (minimum duration of the work contract or security thanks to daily allowance insurance), they have a right to the wage. However, if the employee cancels the performance for other reasons, they may be liable for damages.

• Work contracts: the organiser has the right to cancel the performance at any time, but t he fee must always be paid.

If the artist cannot perform because of illness or accident, they have no claim to compensation. However, if the artists cancels the performance for other reasons, they may be liable for damages.

• Assignments: the organisation must only pay the fee if the cancellation is not made ‘in time’, i.e. it is provided at very short notice.

The artist can also theoretically cancel the performance at any time, but risks being held liable for damages if the cancellation is not provided ‘in time’.

Note: exceptions apply in case of force majeure: if the performance has to be called off because of an exceptional, unpredictable and unavoidable external event (pandemic, …).  

TIP: to avoid irritating discussion, we recommend that you lay down the financial consequences of a cancellation in contracts of all types. 

In principle, contracts must be fulfilled. If all parties agree that they do not wish to work together, they can conclude a termination agreement (see ‘Ending contracts’).

If the parties are not co-operating properly because there is a massive lack of trust and further co-operation is out of the question, exceptional termination is possible.

Note: where there are artistic differences, further co-operation is considered reasonable. If the parties did not lay down clear stipulations regarding such cases in their co-operation agreement and if they cannot come to an agreement on a termination agreement, whether unilateral termination of co-operation has financial consequences depends very much on the individual case (see Tile II).