Der verarmte Schenker – ein unlösbares Problem im Schweizer Recht?

The principle of pacta sunt servanda and the economic capacity of a debtor to perform have an uneasy relationship. Although a creditor can principally rely on the promise of the debtor, the donee as creditor is in less need of protection, as he received a gift without any personal obligation in return. Therefore, many European legal orders allow the donor to revoke a donation in the event of financial hardship. So too does the Swiss Code of Obligations in Art. 250 C.O. which allows a revocation before the performance of the donation; after the performance, the possibilities are more restricted (part I). The article places the Swiss solution on a European scale by analyzing the German Bürgerliches Gesetzbuch, the French and Belgian Code civil, and the European Draft Common Frame of Reference. These jurisdictions provide the donor with a legal institute that allows a termination of the donation. Swiss law thus emphasizes the observance of contracts and represents a very pronounced solution (part II). The article further discusses whether a severe violation of obligations based on family law (Art. 249 section 2 C.O.) can be a reason to revoke a donation even after the performance and thus whether it potentially offers a solution to the impoverishment of the donor: if the donee is not willing to support the donor in the event of poverty, he violates his family law obligation (Art. 328 C.C.). This solution is, however, not satisfactory, as the grounds to revoke a donation are identical to the grounds to disinherit (Art. 477 C.C.), which leads to the contradictory observation that dissimilar situations are treated similarly (part III). Finally, the article discusses the legal institutes offered by the General Part of the Swiss Code of Obligations, namely fundamental error (Art. 24 C.O.) and clausula rebus sic stantibus. Nonetheless, if the diversification of risks offered by the Code of Obligations in the law of donation, namely putting the donor at risk, is to be understand as final, a correction of this result by means of the General Part is not allowed (part IV). The donor must rely on a previous contractual solution to successfully solve the problem of a later impoverishment.