Partial Revision Of Defect Warranty Rights

New notice period for defects

A key feature of the revision is that it partially departs from the requirement for buyers and employers to notify defects immediately. Under the revised law, a statutory 60-day notice period now applies to both visible and hidden defects in the following cases:

• Contracts for the sale of goods (e.g., construction materials) that are intended to be incorporated into an immovable work (art. 201 para. 4 CO),
• Contracts for the sale of property (art. 219a para. 1 CO),
• Contracts for works relating to immovable works (art. 367 para. 1bis and art. 370 para. 4 CO),
• Contracts for works relating to movable works incorporated into an immovable work that have caused that work to be defective (art. 367 para. 1bis and art. 370 para. 4 CO), as well as
• Contracts for works relating to works produced by architects or engineers (e.g., plans) used as the basis for the construction of an immovable work that have led to that work being defective (art. 367 para. 1^bis and art. 370 para. 4 CO).

These new notice periods are mandatory. Contractual clauses providing for shorter notice periods are generally invalid.

Notably, the extended 60-day notice period applies only in the scenarios listed above. For movable goods or works that are not incorporated into an immovable work, the obligation to notify defects immediately remains unchanged, i.e., the notice period continues to be around seven days.

Strengthening of the right to rectification

The revision introduces a mandatory statutory right to rectification for buyers under real estate sale contracts relating to new buildings. Where the property includes a building that is still to be constructed or is less than two years old at the time of sale, the buyer may, in the event of defects, claim free rectification as a matter of law (art. 219a para. 2 CO). This right is governed by the provisions on contracts for works and may neither be limited nor waived in advance.

The right to repair in cases of defects in buildings is now also mandatory under the rules governing contracts for works (art. 368 para. 2^bis CO). Accordingly, contractual clauses frequently used in practice to restrict or exclude the building owner's warranty rights in advance will no longer be permissible to the extent they affect the owner's right to repair. By contrast, a contractual waiver of other warranty remedies (rescission, price reduction and damages) remains permissible, subject to the applicable general limitations.

Mandatory limitation periods

With the revision, the five-year limitation periods for warranty claims – that already applied to sales of property (art. 219a para. 3 CO), contracts for works relating to immovable works (art. 371 paras. 2 and 3 CO), and contracts for works relating to movable works intended to be incorporated into an immovable work (art. 371 paras. 1 and 3 CO) – are now mandatory. As a result, contractual clauses that shorten these limitation periods to the detriment of the buyer/employer, a practice that has been common to date, will no longer be permissible.

Changes to the statutory builders' lien

Alongside the revision of the Swiss Code of Obligations, the rules on the builders' lien (Bauhandwerkerpfandrecht) have also been materially amended. Any substitute security provided to prevent the registration of, or to discharge, a builders' lien must now cover both the asserted claim and default interest for up to ten years (art. 839 para. 3 SCC). This change codifies the Swiss Supreme Court's case law on the amount of interest to be secured and simplifies the practical provision of substitute security.

Transitional provisions

The statutory amendments outlined above entered into force on 1 January 2026 and generally apply to contracts concluded on or after that date. Contracts entered into before 1 January 2026 remain subject to the previous law.

Exceptions apply to the newly mandatory limitation periods: they also extend to contracts concluded under the prior regime where a shorter limitation period was agreed and had not yet expired as of 1 January 2026. Similarly, revised art. 839 para. 3 SCC on the builders' lien applies regardless of the date on which the contract was concluded.

Outlook

The revision brings significant changes to construction contract practice and requires companies that are active in the construction industry to review their existing contract regimes.

We will provide a detailed overview of the new rules and their practical implications in an upcoming issue of our publication "Schellenberg Wittmer Construction Insights".