Contract law and platforms: Comparison with Switzerland
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Swiss contract law reaches many of the same results by different means. The Code of Obligations does not know a general reasonableness test for exclusion clauses. It prohibits the exclusion of liability for gross negligence and intent under Art. 100 CO, and for any negligence where the liability arises from a licensed business under Art. 100 para. 2 CO.1 Art. 8 of the Unfair Competition Act (UCA, UWG) renders void standard terms used against consumers that, contrary to good faith, create a significant and unjustified imbalance between the parties' rights and obligations. The Swiss rules on mistake in Art. 23 ff. CO allow a party to avoid a contract for a fundamental error, including an error as to a fact the party regarded as a necessary basis of the contract, subject to the counterparty's good faith. A Swiss court faced with the Quoine facts might well have found a fundamental error under Art. 24 para. 1 no. 4 CO, but would then have had to decide whether B2C2 had to be aware of it. The Swiss analysis is in Part D, Chapter V. For a group operating on both sides, the practical point is that the Singapore terms and the Swiss terms cannot be identical. The Swiss terms must respect Art. 100 CO and Art. 8 UCA. The Singapore terms must survive the Unfair Contract Terms Act. A master template with jurisdiction-specific riders is the usual solution.
Client question
"Our exchange's terms say that we may reverse any trade we consider erroneous. After Quoine, is that enough?" Only if the clause is in the account terms the customer accepted, states an objective trigger such as a percentage deviation from a reference price, and sets a time limit. A clause that leaves the decision to the platform's unqualified discretion is exposed under s 3(2)(b) of the Unfair Contract Terms Act against retail customers. It will also be construed narrowly against the platform, as Quoine construed the Aberrant Value Clause. The reversal should be documented contemporaneously with the market data that justified it, because the counterparty of the cancelled trade will ask for that data.
Pitfalls
The commonest error on the platform side is relying on documents that were never incorporated. Risk warnings, fee schedules, trading rules and "policies" published on a help page do not bind customers who did not accept them. The commonest error on the customer side is assuming that regulatory rules create contractual rights. They rarely do. A customer who wants a right should look for it in the terms and, if it is absent, should ask for it or go elsewhere. Institutional clients routinely negotiate side letters with licensed custodians covering segregation, reporting, sub-custody and insurance. Retail clients cannot, which is the reason the regulator has stepped in.
Notes
- Art. 100 and 101 CO (SR 220). ↩
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 October 2026.