Gross, Middle and Simple Negligence (WOW 2/2010)

According to art. 100(1) of the Swiss Code of Obligations (CO), an agreement entered into in advance, according to which liability for unlawful intent or gross negligence would be excluded, is null and void (see also WOW45/09). According to Swiss legal theory and case law, a person acts grossly negligent when he gravely departs from elementary imperatives of precaution and thus disregards what would make sense to every conscientious and judicious human being in the same situation and under the same circumstances. When distinguishing gross negligence from middle and simple negligence, emphasis is frequently placed on the following aspects of the contractor's misconduct: The fundamental condition, which must be met in order for a breach of contract to be regarded as gross negligence is that there is a breach of an essential obligation under the contract. If the contractor advertises as being a specialist within his field, he is usually under a higher duty of care than other professionals within the same field who do not claim…