-
- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 13 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 26 FC
- Art. 29a FC
- Art. 30 FC
- Art. 31 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 45 FC
- Art. 51 FC
- Art. 52 FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 69 FC
- Art. 74 FC
- Art. 75b FC
- Art. 77 FC
- Art. 81 FC
- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 119a FC
- Art. 122 FC
- Art. 123a FC
- Art. 123b FC
- Art. 130 FC
- Art. 136 FC
- Art. 164 FC
- Art. 166 FC
- Art. 170 FC
- Art. 176 FC
- Art. 178 FC
- Art. 189 FC
- Art. 191 FC
-
- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 97 CO
- Art. 98 CO
- Art. 99 CO
- Art. 100 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 633 CO
- Art. 701 CO
- Art. 710 CO
- Art. 713 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Art. 795 CO
- Art. 795a CO
- Art. 795b CO
- Art. 795c CO
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
-
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 60 PRA
- Art. 60a PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 64 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
-
- Art. 1 IMAC
- Art. 1a IMAC
- Art. 3 para. 1 and 2 IMAC
- Art. 8 IMAC
- Art. 8a IMAC
- Art. 11b IMAC
- Art. 16 IMAC
- Art. 17 IMAC
- Art. 17a IMAC
- Art. 32 IMAC
- Art. 35 IMAC
- Art. 47 IMAC
- Art. 48 IMAC
- Art. 54 IMAC
- Art. 56 IMAC
- Art. 55a IMAC
- Art. 63 IMAC
- Art. 65 IMAC
- Art. 67 IMAC
- Art. 67a IMAC
- Art. 74 IMAC
- Art. 74a IMAC
- Art. 80 IMAC
- Art. 80a IMAC
- Art. 80b IMAC
- Art. 80c IMAC
- Art. 80d IMAC
- Art. 80h IMAC
- Art. 80k IMAC
-
- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 4 FADP
- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 18 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 21 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 28 FADP
- Art. 29 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 52 FADP
- Art. 54 FADP
- Art. 55 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
-
- Art. 1 CCC (Convention on Cybercrime)
- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
-
- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 9 AMLA
- Art. 11 AMLA
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
- Art. 28 AMLA
- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 33 AMLA
- Art. 34 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
BANKING ACT
- I. General Remarks and Systematic Analysis
- II. Statutory Basis (para. 1)
- III. Amount of the Call for Additional Contributions (para. 2)
- IV. Liability (para. 3)
- Bibliography
- Materials
I. General Remarks and Systematic Analysis
1 Art. 795 of the Swiss Code of Obligations (OR) allows limited liability companies (GmbHs) to provide in their articles of association for an obligation on the part of shareholders to make additional contributions. This discretionary provision constitutes a specific internal financing element and reflects the personalistic structural component of the GmbH. Together with the duty of loyalty (Art. 803(2) CO) and the possibility of ancillary contributions provided for in the articles of incorporation (Art. 796 CO), the obligation to make additional contributions forms an integral part of the shareholders’ joint liability as enshrined in corporate law, which is emphasized more strongly in limited liability company law than in stock corporation law.
2 In contrast to the stock corporation, which, pursuant to Art. 680(1) OR, does not permit any financial obligations beyond the payment-up of capital, the obligation to make additional contributions constitutes a distinctive feature of the GmbH. The stock corporation (AG) recognizes neither an obligation to make additional contributions nor an obligation to provide ancillary contributions with a financing function, as such an obligation would violate the structural principle of capital tie-in.
A. Development and Redesign of the Obligation to Make Additional Contributions in Limited Liability Company Law
1. The Obligation to Make Additional Contributions as a Restructuring Tool
3 Under the law in effect until December 31, 2007, the obligation to make additional contributions was designed exclusively as a restructuring measure. It could only be enforced if there was a net loss (Art. 803(1), second sentence, aOR). Its function was thus limited solely to averting an impending bankruptcy. Even after the revision, the obligation to make additional contributions remains a restructuring tool in the broader sense: It takes effect prior to the statutory restructuring obligation in the event of a capital loss under Art. 820 in conjunction with Art. 725a of the Swiss Code of Obligations (OR), thereby enabling “early restructuring.” Specifically, Art. 795a(2)(1) OR permits the demand for additional capital contributions as soon as the sum of the share capital and the statutory reserves is no longer covered by the company’s assets.
4 With the 2008 limited liability company (GmbH) reform, this restructuring function was further extended to cover liquidity shortfalls (Art. 795a, para. 2, item 2, CO). In stock corporation law, the Federal Act of June 19, 2020 (Stock Corporation Act), effective as of January 1, 2023, introduced Art. 725 CO, which provides for both a monitoring obligation and a duty to act in the event of imminent insolvency and imposes these obligations on the board of directors. Pursuant to Art. 820 CO, these monitoring and duty-to-act obligations also apply to limited liability companies (GmbH). Art. 795a para. 2 item 2 CO specifies these obligations by providing management with a legally regulated instrument to demand additional capital contributions in the event of imminent insolvency. This is not an automatic process: Rather, it is within the managerial discretion of the management, subject to the business judgment rule, to decide whether and when to use this instrument.
5 Another important aspect of the reform is that the obligation to make additional contributions can be used not only as a crisis measure in the event of a net loss (Art. 795a(2)(1) CO) or liquidity shortages (Art. 795a(2)(2) CO) but also that the articles of incorporation may provide for permissible stricter requirements. For example, they may stipulate that additional contributions may be demanded as soon as the permissible coverage ratio is defined more strictly—e.g., by requiring additional contributions as soon as the value falls below twice the sum of the share capital and statutory reserves. From a legal theory perspective, such a clause is not to be understood as a modification of Art. 795a(2)(1) of the Swiss Code of Obligations (OR)—this provision applies directly by law and is not subject to stricter provisions in the articles of incorporation—but rather as an independent ground for demanding additional contributions, as defined in the articles of incorporation, within the meaning of (3). It must therefore satisfy the specificity requirements applicable there. Such provisions act as an “early warning system,” which is in the interest of the company and its creditors, as the financial health of the GmbH must be restored sooner. This proactive measure to secure liquidity or strengthen capital provides the company with greater flexibility without requiring it to meet the strict conditions for a capital increase.
2. The Obligation to Make Additional Contributions as an Instrument of Internal Financing
6 The 2008 GmbH reform brought about a fundamental paradigm shift: The obligation to make additional contributions was functionally expanded and has since served as an instrument of internal financing, which serves not only the purpose of restructuring (Art. 795a, para. 2, items 1 and 2 OR) but also that of actively strengthening capital. Unlike a capital increase under Art. 781 et seq. CO, the obligation to make additional contributions does not require an increase in the nominal share capital but rather provides the company with a flexible means to demand further financial resources from the shareholders—in addition to the payment-up of share capital—provided this is provided for in the articles of incorporation.
7 Particularly at the time of incorporation or during growth phases, the obligation to make additional contributions allows for the targeted imposition of financial obligations on individual, financially capable shareholders without requiring the remaining shareholders to contribute immediately to the same extent. The nominal share capital remains unchanged; however, the additional contributions made—provided they are actually demanded and paid—can help strengthen the company’s economic equity, for example, by creating reserves. The obligation to make additional contributions thus provides the opportunity to respond specifically to asymmetrical financial starting points among the shareholders: Individual shareholders can make a larger capital contribution through higher additional payments, while others—for example, through provisions in the articles of association, individual agreements, or the exclusion of certain shares from the obligation—are relieved of this burden. Such a differentiated structure makes it possible to take into account the respective financial capabilities of the parties involved while still mobilizing urgently needed capital—whether to finance planned investments, secure liquidity, or supplement debt financing.
B. Purpose of the Obligation to Make Additional Contributions
1. Safeguarding the Liability Base
8 The demand for additional contributions pursuant to Art. 795a(2)(1) and (2) of the Swiss Code of Obligations (OR) serves to maintain the financial stability of the limited liability company (GmbH) during a crisis. By obligating the shareholders to provide additional funds, the company’s liability base is strengthened.
9 The call for additional contributions, when made in the face of an impending liquidity crunch or balance sheet losses, is intended to enable early restructuring and to prevent capital loss or even over-indebtedness. The goal is to ensure the continued existence of the company and to prevent bankruptcy. As a result, the obligation to make additional contributions helps to substantially bolster the company’s assets in critical situations and to mitigate the risk of insolvency at an earlier stage.
2. Providing Funds for Expansion
10 The obligation to make additional contributions, as an instrument of internal financing, can serve not only the purpose of securing the liability base but also expansion purposes. Art. 795a(2)(3) of the Swiss Code of Obligations (OR) permits the demand for additional equity capital during economically stable phases, provided this is necessary to pursue the corporate purpose described in the articles of incorporation. The purpose of expansion enables the company to respond specifically to foreseeable investment needs, e.g., in the case of market or product diversification, research projects, the acquisition of equity interests, or targeted capacity expansion.
3. Promotion of Creditworthiness and Indirect Protection of Creditors
11 The obligation to make additional contributions has no direct effect on third parties, but applies only between the company and its shareholders: Creditors have no right to demand such contributions directly, as this is an internal obligation established by the articles of incorporation. It constitutes a statutory instrument through which the company can offset impending losses and stabilize its financial position, thereby ensuring that creditors’ claims can be satisfied at all. In this sense, the obligation to make additional contributions has a preventive effect—not because creditors themselves could access these contributions, but because it helps prevent harm to creditors from occurring in the first place.
12 Even though the obligation to make additional contributions is formally limited to the internal relationship, it can have economic effects for shareholders comparable to those of external liability: Whether funds are paid to the company for onward distribution to creditors or directly to the creditors themselves makes no economic difference—in both cases, the shareholder bears the company’s loss with their own assets. In this capacity, the obligation to make additional contributions serves a preventive function to protect creditors, even if the creditors themselves are not directly entitled to demand such contributions.
13 A certain external effect also arises from the requirement for public disclosure: Pursuant to Art. 73(1)(j) of the Commercial Register Ordinance (HRegV), where additional contribution obligations exist, a reference to their detailed description in the articles of incorporation must be entered in the Commercial Register. Even though neither the specific amount nor the shares in question are apparent from the registry entry, this reference signals that the investment is encumbered by an additional commitment of funds—a circumstance that may well carry weight in a creditworthiness assessment conducted by third parties. In this sense, it can be argued—beyond current legal doctrine—that a statutory obligation to make additional contributions may have indirect relevance to creditworthiness. In support of this thesis—in addition to the requirement for entry in the Commercial Register (Art. 73, para. 1, lit. j HRegV)—is the fact that its waiver is subject to a strict creditor protection procedure under Art. 795c OR and that it can be enforced in the event of bankruptcy (Art. 795a, para. 3 OR).
14 Art. 795c(1) OR protects creditors’ interests by ensuring that the company cannot unilaterally waive or reduce call obligations in the event of a net loss. In this way, the law prevents the company from disposing of potentially callable funds—on which creditors may indirectly rely—particularly during a period of economic weakness. In establishing these protective mechanisms, the legislature explicitly modeled them on the rules governing capital reductions under stock corporation law (Art. 795c, para. 2, in conjunction with Art. 782, para. 4, and Art. 653j et seq. CO): The reduction or waiver of the obligation to make additional contributions requires a constitutive procedure. Creditors must be notified in the Swiss Commercial Gazette that they may demand security upon filing their claims (Art. 653k(1) CO); the request must be filed within 30 days of publication (Art. 653k(2) CO). In addition, the following are required: the interim financial statements; confirmation from a licensed audit expert that the creditors’ claims are fully covered despite the reduction (Art. 653m(1) CO); the public notarization of the resolution (Art. 653n CO), and its entry in the Commercial Register (Art. 81 in conjunction with Art. 77 HRegV). The procedure is intended to warn creditors at an early stage so that they can demand collateral or review their contractual relationships before the amendment to the articles of incorporation takes effect. The same applies to Art. 795b CO, which governs the repayment of capital contributions already made: Here, too, it is cumulatively required that the amount be covered by freely disposable equity and that a licensed auditing expert confirm this in writing. This makes it clear that the obligation to make additional contributions, despite its primary character as an internal obligation, can have an indirect effect of protecting creditors.
C. Systematic Distinctions from Related Institutions
1. Distinction from the Obligation to Make Additional Contributions under Cooperative Law
15 The obligation to make additional contributions under cooperative law (Art. 871 CO) aims to avert impending bankruptcy and ensure the cooperative’s viability. It is specifically designed to cover balance sheet losses—that is, a structural shortfall in equity—and thus differs functionally from the obligation to make additional contributions in a limited liability company (GmbH), which, since the 2008 revision, can also be structured as a flexible financing instrument with a broader range of purposes. Another difference, which has received little attention in legal scholarship to date, concerns the timing of the demand: Cooperative additional contributions may be demanded at any time; in the event of bankruptcy, they may be demanded by the bankruptcy administrator (Art. 871(4) CO). In contrast, GmbH law ties the demand to the exhaustive list set forth in Art. 795a(2) CO, thereby making it contingent upon a substantive prerequisite. Although the cooperative’s obligation to make additional contributions is purpose-limited in this respect—it may only serve to cover balance sheet losses—it is structured more flexibly in terms of when it can be invoked than its counterpart under LLC law.
16 In a cooperative, the obligation to make additional contributions—provided it is stipulated in the bylaws—may collectively oblige all members to offset existing balance sheet losses. It primarily has an internal effect: the cooperative itself is the creditor of the additional contributions, not the external creditors of the cooperative. Nevertheless—just like the obligation to make additional contributions under GmbH law—it has an indirect creditor-protective effect by strengthening equity, ensuring the cooperative’s continued existence, and thereby also safeguarding the fulfillment of existing creditor claims. In addition to this restructuring-related function, the obligation to make additional contributions in a cooperative also serves as a creditworthiness factor: It strengthens confidence in the cooperative’s creditworthiness—similar to the personal liability of members under Art. 869 et seq. of the Swiss Code of Obligations (OR)—since it signals that additional funds can be mobilized if necessary.
17 Structurally, the cooperative’s obligation to make additional contributions differs in that it can be structured as either limited or unlimited. In the absence of a statutory limitation, the unlimited variant applies. In contrast, limited liability company (GmbH) law does not recognize unlimited additional contribution obligations: there, the maximum additional contribution limit must be specified in the articles of incorporation and is limited to the individual shareholder’s liability. Another distinctive feature of cooperatives is the collective nature of the obligation to make additional contributions: it applies to all members in accordance with the allocation formula provided for in the articles of association; in the absence of a provision in the articles of association, the allocation is based on the amount of the cooperative shares or, if no such shares exist, on a per-member basis (Art. 871(3) CO). By contrast, Art. 871 of the Swiss Code of Obligations (OR) does not establish joint and several liability among the members; the only joint and several liability applies to personal liability under Art. 869(2) OR. The limited liability company (GmbH) has no comparable allocation system: here, the obligation to make additional contributions is always determined individually based on the capital shares. In addition, Art. 871 CO permits a combination of the obligation to make additional contributions with personal liability under Art. 869 et seq. CO. This dual safeguard consisting of joint and several liability and a collective obligation to make additional contributions is specific to cooperatives. Under limited liability company (GmbH) law, such a combination is excluded: there, the obligation to make additional contributions always remains a purely statutory, individually structured financing instrument.
2. Distinction from Partial Payment in Stock Corporation Law
18 The obligation to make additional contributions is often understood in the literature as a functional equivalent to a partially paid-in contribution. In both the obligation to make additional contributions and the obligation to make supplementary payments (Art. 634b CO), the decision to demand such payments rests with the management or the board of directors. Both instruments also allow for the targeted addressing of asymmetrical financial situations among the shareholders. In both cases, the nominal share capital remains unchanged; however, the additional contributions made—provided they are actually called for and paid—can contribute to strengthening economic equity.
19 Despite these functional parallels, there are significant structural and legal differences between the two concepts: Subsequent capital contributions (Art. 634b CO) serve to secure the liability base as a creditor protection mechanism and constitute a statutory obligation that the shareholder assumes upon the acquisition of the share. It is not designed as a restructuring measure but rather concerns funds that are owed from the outset, without—as is the case with additional capital contributions—new additional funds being provided to cover losses or bridge liquidity gaps. The amount not yet paid in is considered a claim of the company against the shareholder and must be capitalized as a separate item of fixed assets (Art. 959a para. 1 no. 2 lit. e CO) . In contrast, the obligation to make additional contributions in a limited liability company (GmbH) is based purely on the articles of association and is discretionary: It must be provided for in the articles of association, and its scope, structure, and grounds for enforcement can be flexibly determined.
3. Distinction from the Capital Band
20 The obligation to make additional contributions, as an instrument of internal financing, is very similar to the concept of the capital band in the sense of an authorized capital increase (Art. 653s–653v CO). In both cases, the governing body—the management or the board of directors—is granted entrepreneurial discretion to provide the company with additional funds within a framework defined in advance by the shareholders’ meeting or general meeting in the articles of association. No such mechanism exists for the limited liability company (GmbH): Art. 781 et seq. CO recognize only the ordinary increase in share capital; a capital band or an authorized capital increase are not available. It is precisely here that the unique significance of the obligation to make additional contributions lies—under GmbH law, it fulfills the function that the capital band fulfills under stock corporation law, without triggering the capital-affecting legal consequences of the latter.
21 In the case of a stock corporation, the general meeting must explicitly authorize the board of directors to utilize the capital band (Art. 653s, paras. 1–3 CO), whereby the upper and lower limits of the band, the term of the authorization (maximum of five years), and the other conditions must be precisely specified in the articles of incorporation. Within this framework, the board of directors is granted operational leeway to decide flexibly on the call for additional funds. Under limited liability company (GmbH) law as well, the management is granted comparable leeway through the statutory introduction of an obligation to make additional contributions. It is authorized to call for additional funds from the shareholders within the limits of the maximum amounts and grounds for calling for funds specified in the articles of incorporation. Unlike the capital band, however, this authority of the management is not time-limited but remains in effect permanently as long as the obligation to make additional contributions remains in force in accordance with the articles of incorporation.
22 Structurally, however, the mechanisms differ significantly: The capital band alters the nominal share capital relevant for liability purposes and therefore requires an amendment to the articles of incorporation, which must be notarized, following each increase or decrease (Art. 653u para. 4 CO). It is thus subject to stricter protective mechanisms under corporate law, in particular shareholders’ subscription rights (Art. 652b(1) CO), which may be restricted or waived in the articles of incorporation (Art. 653t(1)(7) CO) . In addition, there is a mandatory statutory range: the upper and lower limits of the capital range may not exceed or fall below the share capital entered in the Commercial Register by more than half, respectively (Art. 653s para. 2 CO). This presents a notable parallel to Art. 795(2) CO: Both provisions grant the executive body entrepreneurial discretion but limit it through a mandatory, legally prescribed relationship to the existing capital. In contrast, additional contributions do not increase the nominal share capital and do not trigger such protective mechanisms; they serve the purpose of internal financing or restructuring.
4. Distinction from a Capital Increase and a Share Premium
23 The payment of additional contributions pursuant to Art. 795 CO does not constitute a contribution in the traditional sense and is also not equivalent to a capital increase or a share premium. The shareholders do not receive additional shares, and the par value of their existing holdings is not increased. The additional contributions are made without any consideration under corporate law (capital contribution) and serve exclusively to provide the company with financial resources. From a balance sheet perspective, they may lead to the creation of reserves, which may functionally resemble a share premium; legally, however, the distinction remains clear: this is a statutory internal obligation without a capital increase. Nor can additional contributions made be attributed to the shareholder’s shares and thereby converted into additional voting power; this would require a formal capital increase pursuant to Art. 781 et seq. of the Swiss Code of Obligations (OR). Even within the scope of application of Art. 795a(2)(3) of the Swiss Code of Obligations (OR)—that is, when called upon for other purposes specified in the articles of association—the fact remains that no consideration is provided and the payment does not affect the capital.
24 The obligation to make additional contributions is an instrument of internal financing specific to limited liability company (GmbH) law. It enables the company to draw on additional funds from its shareholders outside the context of a capital increase. Although these funds do not increase the nominal share capital, they function as equity on the balance sheet and may, for example, be recorded as capital reserves. The High Court of the Canton of Zurich has confirmed this: While additional contributions may suggest a need for restructuring or financing on the part of the company, they are made as contributions to the company’s assets and have characteristics similar to equity; this does not result in a reduction in the company’s value. This strengthens the liability base effectively available to the company—that is, the economic foundation of liability that extends beyond the reported share capital (e.g., through reserves or additional contributions). Particularly during periods of economic strain, the obligation to make additional contributions thus allows for flexible capital strengthening without having to go through a capital increase procedure within the meaning of Art. 781 et seq. of the Swiss Code of Obligations (OR).
5. Distinction from a Capital Reduction with Simultaneous Increase (Capital Cut)
25 In restructuring cases, the enforcement or reduction of additional contributions may functionally resemble the model of a capital reduction with a simultaneous increase—also known as a “harmonica” or “capital cut”—(Art. 782 in conjunction with Arts. 653q–653r of the Swiss Code of Obligations). In a capital cut, the share capital is first reduced to zero—thereby extinguishing existing membership rights and requiring the cancellation of issued shares—and then rebuilt through a simultaneous capital increase (Art. 653r(1) CO). Existing shareholders are entitled to a subscription right upon the re-increase, which cannot be revoked (Art. 653r(2) CO)—unlike in the case of a capital band, where the subscription right may be restricted or waived by the articles of incorporation.
26 As with the obligation to make additional contributions, the shareholders undertake to provide new capital in order to reduce the company’s debts and ensure its continued existence. A capital reduction is typically used in cases of severe over-indebtedness or complete loss of equity and requires a viable restructuring plan. This plan must serve the purpose of restructuring; the mere fact that the company is in need of restructuring does not, in and of itself, make a reduction to zero followed by a subsequent increase a measure intended for restructuring purposes. Rather, the decisive factor is whether the measure is suitable for actually eliminating the deficit and not merely mitigating it. The Federal Supreme Court ruled on this with regard to Art. 732a(1) aOR; since Art. 653r OR continues the substance of the repealed provision, the same must apply under current law. The obligation to make additional contributions, on the other hand, is designed as an early restructuring measure aimed at preserving and stabilizing the existing shareholder structure without forcing a restructuring under corporate law. Furthermore, before a capital reduction is carried out, the additional contribution obligations provided for in the articles of association must be fully fulfilled (Art. 782(3) OR).
27 In the case of the obligation to make additional contributions, the shareholders’ obligation arises from the statutory basis, which permits management to claim additional funds when the statutory grounds for such a claim exist. The articles of incorporation do not need to be amended when the obligation to make additional contributions is enforced, as the nominal share capital remains unchanged. Similarly, no amendment to the articles of incorporation is required in the case of a capital reduction with a simultaneous increase, provided that the number and par value of the shares, as well as the amount of the contributions made thereto, remain unchanged (Art. 653q(3) CO). However, a dual resolution by the general meeting and registration with the commercial registry office remain required. By contrast, the provisions regarding the securing of claims, the interim financial statements, the auditor’s report, and the findings of the board of directors do not apply if the share capital is increased to at least the previous amount and the amount of the paid-in capital is not reduced (Art. 653q(1) CO); outside of this scenario—namely, in the case of a capital reduction to zero—the general provisions of Art. 653k et seq. CO continue to apply. In both cases, the capital injection is thus carried out operationally, without the need to amend the capital structure under corporate law in the articles of incorporation. Differences do exist, however, with regard to the formal procedure and the legal consequences for membership rights.
6. Distinction from Ancillary Contributions
28 Although additional contribution obligations, like ancillary contribution obligations under Art. 796 CO, also require a statutory basis, they are categories that differ in substance. Additional contribution obligations within the meaning of Art. 795 CO are aimed exclusively at the financial endowment of the company and are directly associated with the equity capital regime. They therefore require a contribution of money or other assets without adequate consideration (see Art. 796(4) CO), which clearly distinguishes them from other contributions made in the context of internal corporate obligations. In contrast, obligations to make non-monetary contributions under Art. 796 OR are primarily of a non-financial nature; they include, for example, the transfer of know-how or personal labor and must serve the company’s purpose, the preservation of its independence, or the maintenance of the composition of the shareholder base (Art. 796(2) OR), not its financing. However, monetary contributions are not thereby excluded: obligations under the articles of incorporation to pay money or to contribute other assets are subject to the additional contribution regime only if, cumulatively, no appropriate consideration is provided and the demand serves to meet the company’s equity capital requirements (Art. 796(4) CO). If both conditions are met, they are—regardless of their formal classification in the articles of incorporation—substantively considered additional contribution obligations and must satisfy the requirements of Art. 795 et seq. CO
II. Statutory Basis (para. 1)
A. Requirement of a Statutory Basis
29 The introduction of a call-up obligation requires, as a matter of law, a statutory basis (Art. 795(1) CO). The articles of incorporation must unequivocally state that a call for additional contributions exists and clearly define its scope. The call for additional contributions may only be structured within the limits of the maximum amount permitted by law pursuant to Art. 795(2) CO. Until the revision of the Stock Corporation Act took effect on January 1, 2023, the obligation to make additional contributions was classified as a case of conditionally necessary content of the articles of incorporation within the meaning of Art. 776a(1)(1) of the Swiss Code of Obligations (CO). However, the Federal Act of June 19, 2020 (Stock Corporation Act) repealed Art. 776a CO was repealed without replacement, as a systematic enumeration of the minimum statutory requirements—based on the law on stock corporations (Art. 626 CO)—was no longer considered necessary.
30 The resolution to introduce or amend an obligation to make additional contributions must be notarized and entered in the Commercial Register (Art. 780 CO; Art. 73, para. 1, lit. j HRegV). With regard to the resolution, a distinction must be made pursuant to Art. 797 CO: If an obligation to make additional contributions is introduced or increased and imposed on all shareholders, unanimity is required. This high threshold for approval applies even though the obligation to make additional contributions is linked to the share and not to the individual. The legislature intends to ensure that shareholders cannot be subsequently obligated to make additional financial contributions without express consent to a substantial expansion of their obligations. If the obligation to make additional contributions is introduced or increased only for certain shares—for example, when creating new share categories or modifying existing ones—the consent of the shareholders affected by this change is sufficient. In addition, a resolution to amend the articles of incorporation is required, which is subject to the majority requirement of Art. 808 CO.
31 If an obligation to make additional contributions has been introduced by the articles of association, another aspect must be taken into account in the event of the transfer of an affected share: Pursuant to Art. 785(2) in conjunction with Art. 777a(2)(1) of the Swiss Code of Obligations (OR), the assignment agreement must expressly refer to the existing obligation to make additional contributions; otherwise, the assignment agreement may be deemed void. This reference is unnecessary only if the acquirer is already a shareholder (Art. 785(2), last sentence, CO); the same applies to the subscription certificate in the event of an increase in share capital (Art. 781(3), second sentence, CO). At the same time, the company itself may also refuse to consent to the assignment if the acquirer’s ability to fulfill the obligation to make additional contributions is in doubt. In this case, Art. 786(2)(5) CO permits a so-called creditworthiness restriction, under which consent to the transfer may be refused unless sufficient security is provided. The possibility of incorporating such clauses into the articles of association shows that the legislature intends to deliberately ensure the ability to make additional contributions even in the event of the acquisition of an affected class share. It is therefore advisable to consider including a corresponding creditworthiness restriction already when introducing additional contribution obligations in order to ensure the instrument’s functionality even in the event of a change in shareholders.
B. Rules on Demanding Additional Contributions and Statutory Restrictions on Use
32 The articles of incorporation need not specify in detail the conditions under which additional contributions may be demanded. The circumstances specified in Art. 795a(2)(1) (capital loss) and (2) (liquidity shortage) apply directly by operation of law and require no additional description in the articles of incorporation. A generally worded obligation to make additional contributions is sufficient in this respect to trigger these grounds for demanding such contributions.
33 The situation is different with regard to Art. 795a(2)(3) CO. This provision permits additional contributions for other purposes specified in the articles of incorporation. Here, the law requires a clear and specific description of the purpose in the articles of incorporation. General or vague formulations such as “to secure corporate financing” or “for investments” are insufficient. A specific justification linked to the company’s purpose is required. In the absence of such a statutory basis, a demand based on item 3 is impermissible. For the sake of legal certainty and to distinguish such obligations from those arising purely under the law of obligations, it is recommended that the scope of application be defined as clearly as possible in the articles of incorporation, particularly if Section 3 is also to apply.
C. Distinction from Coverage Obligations Under the Law of Obligations
34 Not all obligations to finance the company are of a corporate law nature. Obligations established outside the articles of incorporation—such as through guarantees, sureties, or loans—are not considered obligations to make additional contributions within the meaning of Art. 795 et seq. CO. These are obligations to perform under the law of obligations, which are governed by the general law of obligations (e.g., Art. 312 et seq. CO). Purely contractually agreed “additional contributions”—such as those in shareholder agreements or supplementary agreements—are also permissible; however, such obligations are not subject to the corporate law regime of Art. 795 et seq. OR, in particular not to the provisions regarding demand, amount, or repayment. The articles of incorporation must therefore clearly indicate whether the obligation constitutes a corporate call for additional contributions within the meaning of the law. Only then do the protective and structural provisions of limited liability company (GmbH) law apply.
III. Amount of the Call for Additional Contributions (para. 2)
A. Statutory Upper Limit
35 Article 795(2) of the Swiss Code of Obligations (OR) stipulates that the amount of the additional contribution associated with a capital share may not exceed twice the par value. This statutory limit ensures that the obligations set forth in the articles of incorporation remain predictable. This limit is mandatory and is intended to ensure that the GmbH is not effectively converted into a company with unlimited liability through the structure of its articles of association. The limit also makes it easier for creditors to assess the company’s creditworthiness.
B Obligation Tied to the Share
36 Upon transfer of the share, the obligation to make additional contributions generally passes to the transferee, provided that the formal requirements (Art. 785 CO) and the approval requirements under corporate law (Art. 786 CO) are met. The assignment agreement must refer to the obligation to make additional contributions (Art. 785(2) in conjunction with Art. 777a(2)(1) CO), as it may have significant consequences for the transferee; such a reference is only dispensable if the acquiring person is already a shareholder (Art. 785(2), last sentence, CO).
37 The amount of the obligation to make additional contributions must be determined individually with reference to the shares—lump-sum amounts or aggregate sums are not sufficient. Permitted are fixed monetary amounts (e.g., CHF 5,000 per share) or relative specifications (e.g., 20% of the share capital), always limited by the statutory maximum (Art. 795(2) CO). Care must always be taken to ensure that the individual liability associated with a share does not exceed the statutory maximum. Lump-sum specifications are impermissible, e.g., “additional contribution obligations up to a total amount of CHF 100,000,” if no allocation to specific ordinary shares is made. Such wording violates the requirement of specificity and renders the provision null and void.
38 The obligation to make additional contributions may be applied differentially to individual or specific categories of ordinary shares. For example, the articles of association may provide for different contribution amounts for shares with special voting rights or economic significance—as long as the provision remains transparent and determinable. These options for differentiation illustrate the flexibility of limited liability company (GmbH) law, which allows for individual financial capacity and structural flexibility within a clearly defined framework.
C. Disclosure and Transparency
39 The specific scope of the obligation to make additional contributions is not disclosed in the Commercial Register. Only a reference to the detailed description in the articles of association is entered (Art. 73(1)(j) HRegV). The amount and specific structure—and, in particular, which shares are affected—are derived solely from the articles of association themselves. Creditors therefore have only indirect access to information: they can determine the existence of call obligations, but not their scope.
IV. Liability (para. 3)
40 Art. 795, para. 3 of the Swiss Code of Obligations (OR) expressly clarifies that there is no joint and several liability of the shareholders for additional contributions. Each shareholder is liable only for the obligations associated with her or his own capital shares. The obligation to make additional contributions thus gives rise to personal but asset-based liability—comparable to a real obligation—that is linked to the capital share. A pro rata or joint and several liability for additional contributions made by other shareholders is excluded.
Bibliography
Amstutz Marc/Chappuis Fernand/Gohari Ramin Silvan, in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).
Amstutz Marc/Gohari Ramin Silvan, in: Kren Kostkiewicz Jolanta et al. (Hrsg.), Orell Füssli Kommentar zum schweizerischen Obligationenrecht 4. Aufl., Zürich 2023 (zit. OFK).
Bernadoni Nicola/Catelli Cinzia, in: Wildhaber Isabelle/Häusermann Daniel/Honsell Heinrich (Hrsg.), Kurzkommentar Obligationenrecht, 2. Aufl., Basel 2025 (zit. KuKo).
Bernet Sandro, Das Kapitalband als Instrument der Unternehmensfinanzierung, Diss. Zürich, Zürich 2023 (zit. Bernet, Kapitalband).
Böckli Peter, Das neue schweizerische GmbH-Recht – was ist wirklich neu? Eine Übersicht, in: Böckli Peter/Forstmoser Peter (Hrsg.), Das neue schweizerische GmbH-Recht, Zürich 2006, S. 1-43 (zit. GmbH-Recht).
Böckli Peter, Schweizer Aktienecht – Aktienrecht mit Rechnungslegung, 5. Aufl., Zürich 2022 (zit. Aktienrecht).
Böckli Peter/Forstmoser Peter/Rapp Jean-Marc, Expertenbericht zum Vorentwurf für eine Reform des Rechts der Gesellschaft mit beschränkter Haftung, Vernehmlassungsunterlagen vom April 1999, Bern.
Candreia Philipp/Zindel Gaudenz G/Isler Peter R., in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).
Chabloz Isabelle, in: Tercier Pierre/Trigo Trindade Rita/Canapa Damiano (Hrsg.), Commentaire Romand, Code des Obligations II, 3. Aufl., Basel 2024 (zit. CR).
Chappuis Fernand, Die Erweiterung der Einsatzmöglichkeiten von Nachschüssen im neuen schweizerischen GmbH-Recht, SJZ 103 (2007), S. 85-92 (zit. SJZ).
Chappuis Fernand/Jaccard Michel, in: Tercier Pierre/Trigo Trindade Rita/Canapa Damiano (Hrsg.), Commentaire Romand, Code des Obligations II, 3. Aufl., Basel 2024 (zit. CR).
Dörig Adrian/Glatthaar Matthias, in: Kren Kostkiewicz Jolanta et al. (Hrsg.), Orell Füssli Kommentar zum schweizerischen Obligationenrecht, 4. Aufl., Zürich 2023 (zit. OFK).
Drenhaus Mark, in: Roberto Vito/Trüeb Hans Rudolf (Hrsg.), Handkommentar zum Schweizer Privatrecht, 4. Aufl., Zürich 2024 (zit. CHK).
Druey Jean Nicolas/Druey Just Eva/Glanzmann Lukas, Gesellschafts- und Handelsrecht, 12. Aufl., Zürich 2021.
Germann Sandro, Die personalistische AG und GmbH, Diss. Zürich 2015.
Giroud, Roger, Nachschusspflicht des Aktionärs, in: Böhme Anna/Gähwiler Fabian/Theus Simoni Fabiana/Zuberbühler Ivo (Hrsg.), Ohne jegliche Haftung – Festschrift für Willi Fischer, Zürich 2016, S. 181-188.
Handschin Lukas/Truniger Christof, Die GmbH, Zürich 2019.
Jaccard Michel/Baruh Erol, Capital-risque et financement par étape (staged financing). De nouvelle perspectives suite à la révision du droit de la Sàrl ?, GesKR 3/2007, S. 280-287.
Kägi Urs/Zweifel Linus, in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).
Keller Raphael, in: Wildhaber Isabelle/Häusermann Daniel/Honsell Heinrich (Hrsg.), Kurzkommentar Obligationenrecht, 2. Aufl. Basel 2025 (zit. KuKo).
Küng Manfred/Aebischer Marcel, in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).
Kunz Peter V., Grundpfeiler des Eigenkapitals: Kapitalaufbringung sowie Kapitalerhöhung, GesKR 2014, S. 52-62 (zit. GesKR).
Mayer Eduard, Die Nachschusspflicht im schweizerischen Recht der Handelsgesellschaften und Genossenschaften, Diss. Zürich 1944.
Montavon Pascal/Jabbour Ivan, Nachschüsse und Verpflichtungen in Form von Geld oder anderen Vermögenswerten der GmbH, TREX 2 (2023), S. 236-243 (zit. TREX).
Nigg Hans, in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).
Ruggle Peter, in: Wildhaber Isabelle/Häusermann Daniel/Honsell Heinrich (Hrsg.), Kurzkommentar Obligationenrecht, 2. Aufl., Basel 2025 (zit. KuKo).
Seiler Moritz/Sethe Rolf, in: Honsell Heinrich (Hrsg.), Kurzkommentar Obligationenrecht, 1. Aufl., Basel 2014 (zit. KuKo).
Sethe Rolf/Lütolf Daniel, Das Pflichtengefüge im Falle der Unterkapitalisierung einer AG, ZSR 2018, S. 201-222 (zit. ZSR 2018).
Siffert Rino/Fischer Marc Pascal/Petrin Martin, in: Baker & McKenzie (Hrsg.), Stämpflis Handkommentar, GmbH-Recht, Zürich 2008 (zit. SHK).
Stauber Nathalie V./Talbot Philipp, Die Praxis des Nachlassgerichts Zürich zum revidierten Sanierungsrecht, AJP 2017, S. 874-885.
Sturny Thiemo/Trüeb Hans Rudolf, in: Roberto Vito/Trüeb Hans Rudolf (Hrsg.), Handkommentar zum Schweizer Privatrecht, 4. Aufl., 2024 Zürich (zit. CHK).
Theus Simoni Fabiana/Hauser Isabel/Bärtschi Harald, Handbuch Schweizer GmbH-Recht, 2019 Zürich.
von der Crone Hans Caspar, Aktienrecht, 2. Aufl., Bern 2020.
Materials
Botschaft zur Revision des Obligationenrechts (GmbH-Recht sowie Anpassungen im Aktien-, Genossenschafts- Handelsregister- und Firmenrecht) vom 19.12.2001, BBl 2002 3148 ff.; abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2002/443/de/pdf-a/fedlex-data-admin-ch-eli-fga-2002-443-de-pdf-a.pdf, besucht am 13.6.2025.
Botschaft zur Änderung des Obligationenrechts (Aktienrecht) vom 23.11.2016, BBl 2017 399 ff., abrufbar unter https://www.admin.ch/opc/de/federal-gazette/2017/399.pdf, besucht am 13.6.2025.