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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
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- 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)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
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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 Provisions
- II. Enforcement of the Obligation to Make Additional Contributions (Paragraph 1)
- III. Prerequisites (Par. 2)
- IV. Bankruptcy (Para. 3)
- Bibliography
I. General Provisions
1 Art. 795a of the Swiss Code of Obligations (OR) governs the procedure for demanding additional contributions, the statutory basis for which is set forth in Art. 795 OR. While Art. 795 determines the “whether” and the general conditions of the obligation to make additional contributions, Art. 795a addresses the “how”—that is, the prerequisites, responsibilities, and effects of the demand. The provision operates at the intersection of financing autonomy, early restructuring measures, and the personal joint liability of the shareholders—and thus reflects the hybrid structure of the limited liability company (GmbH) between a corporation and a partnership. Art. 795a CO specifies the three permissible grounds for demanding additional contributions: when the sum of share capital and statutory reserves is no longer covered—in other words, in the event of a net loss (para. 1); when the company cannot properly continue its business operations without these additional funds—in other words, in the event of an impending liquidity crunch (para. 2); and when the company requires equity capital for reasons specified in the articles of incorporation, i.e., in the event of a statutory requirement for equity (Item 3). While Items 1 and 2 are prescribed by law and address acute situations of risk, Item 3 requires a clear and purpose-specific basis in the articles of incorporation.
2 The obligation to make additional contributions underwent a fundamental redesign as part of the 2008 GmbH reform. Under the law in effect until December 31, 2007, it was structured exclusively as a restructuring measure: It could only be enforced if there was a net loss (Art. 803, para. 1, sentence 2 aOR) and served primarily to avert an impending bankruptcy. The reform broke away from this narrow functional framework and transformed the obligation to make additional contributions into a flexible instrument of internal financing that can be used not only in a crisis but also for actively strengthening capital and securing liquidity. Today, the company can—in addition to the payment-up of share capital—require additional financial contributions from shareholders without carrying out a formal capital increase pursuant to Art. 781 et seq. OR.
3 The statutory obligation to make additional contributions opens up new possibilities, particularly for growth-oriented and capital-intensive SMEs: It allows the company to place a targeted burden on individual, particularly high-performing shareholders without requiring all parties to contribute proportionally. The nominal share capital remains unchanged, but the additional contributions actually demanded and made strengthen economic equity, for example through the creation of reserves. The legislature has expressly confirmed this classification in Art. 826(1) of the Swiss Code of Obligations (OR): Additional contributions made and not repaid shall be allocated to the capital shares of the shareholders concerned and to the share capital for the purpose of calculating the liquidation share, unless the articles of incorporation provide otherwise. By conceiving the obligation to make additional contributions as a functional equivalent to a partially paid-in contribution, the legislature endowed it with an equity-like quality, without completely losing its restructuring character: It remains an important means of averting impending over-indebtedness or bankruptcy and ensuring short-term financial stability.
II. Enforcement of the Obligation to Make Additional Contributions (Paragraph 1)
A. Jurisdiction and Legal Nature of the Resolution
1. Allocation and Decision-Making Authority
4 The 2008 GmbH reform fundamentally changed the system for demanding additional contributions: The management may demand additional contributions without a prior resolution by the shareholders’ meeting—a deliberate departure from the law in effect until the end of 2007 (Art. 803, para. 3 aOR). This shift in authority strengthens the ability to act in crisis situations and underscores the business-oriented nature of the obligation to make additional contributions as an instrument of internal financing.
5 The demand for additional contributions constitutes an ordinary act of management and therefore does not fall under the non-delegable powers specified in Art. 810(2) OR. Art. 795a(1) of the Swiss Code of Obligations (OR) assigns this authority to the management. The articles of incorporation may deviate from this in two ways, which must be distinguished: First, they may provide that the management must submit the decision to demand additional contributions to the shareholders’ meeting for approval (Art. 811(1)(1) OR); in this case, the decision-making authority remains with the management, and the approval does not limit its liability (Art. 811(2) CO). Second, the articles of incorporation may assign the authority entirely to the shareholders’ meeting; The basis for this is not Art. 811 CO, but Art. 810(1) CO in conjunction with Art. 804(2)(18) CO. Since the call for additional contributions is not an inalienable management right within the meaning of Art. 810(2) CO, there is nothing to preclude such an assignment.
6 Unless the obligation to make additional contributions is otherwise regulated by a special provision in the articles of association, the ordinary majority principle pursuant to Art. 809(4) CO applies to management decisions. The majority of the votes cast is decisive; in the event of a tie, the chairperson has the casting vote (Art. 809(4), sentences 1 and 2, CO). Within the management board, the “one person, one vote” principle thus applies; the shareholder’s stake in the share capital is irrelevant. The articles of incorporation may provide for different rules governing decision-making (Art. 809(4), sentence 3, CO). If the articles of incorporation assign the decision to call in capital to the shareholders’ meeting, the decision-making is governed by Art. 808 CO: An absolute majority of the votes represented is required, unless otherwise provided by law or the articles of incorporation. A qualified quorum under Art. 808b CO is not required; the resolution to demand additional contributions gives effect to the obligation to make additional contributions already established by the articles of incorporation, without introducing or expanding it. In any case, Art. 797 CO requires the consent of all shareholders affected by such an obligation for its subsequent introduction or expansion.
2. Comparison with Resolutions on Capital Increases Within the Capital Band
7 The call for additional contributions pursuant to Art. 795a CO exhibits functional parallels to the Board of Directors’ resolution on a capital increase within the capital band (Arts. 653s–653v CO). Both the obligation to make additional contributions and the capital band require that the general meeting or shareholders’ meeting establish a corresponding statutory basis (Art. 795, para. 1, and Art. 653s, para. 1, CO). In the case of a stock corporation, the General Meeting must explicitly authorize the Board of Directors, through an amendment to the Articles of Incorporation, to utilize the capital band (Art. 653s, paras. 1–3 CO), whereby the upper and lower limits of the band, the term of authorization (maximum of five years), and the other conditions must be precisely defined in the articles of incorporation. Within this framework, the operational body—the Board of Directors or management—is granted entrepreneurial discretion to decide flexibly on the call for additional funds.
8 In doing so, the governing bodies exercise their discretion in accordance with their duties to determine whether and to what extent they will utilize the maximum amount provided for. They are neither obligated to call upon the maximum amount immediately nor prevented from making staggered or partial calls—their decision is based on business considerations; judicial review is guided by the principles of the business judgment rule. The decisive factor is whether the decision was made on the basis of adequate information, free from conflicts of interest, and in the well-understood interest of the company.
9 Structurally, however, the mechanisms differ significantly: The capital band alters the nominal share capital relevant for liability, which, among other things, requires an amendment to the articles of incorporation (Art. 653u para. 4 CO) and is thus subject to stricter corporate law protection mechanisms, in particular shareholders’ subscription rights (Art. 652b para. 1 CO), which are restricted or waived (Art. 653t(1)(7) CO). Additional capital contributions do not increase the nominal share capital and do not trigger such protective mechanisms; they serve the purpose of internal financing or restructuring.
B. Substantive Requirements and Modalities
10 The management must adopt a resolution to call for additional capital that specifies the details. This resolution must include, at a minimum, the total amount, the allocation among the shareholders, the due date, payment terms, and any legal consequences (e.g., contractual penalty or expulsion). However, sanctions such as a contractual penalty or expulsion must already be provided for in the articles of association; they cannot be created solely by the resolution demanding additional contributions. The legal consequence of the absence of these elements is unclear. Some legal scholars assume nullity. A more nuanced approach seems preferable: If a constitutive element is missing—namely, the total amount or the distribution formula— the resolution is unenforceable due to the inability to determine the performance and has no legal effect. In contrast, in the case of mere defects in the resolution’s formulation (such as an unreasonable deadline), the resolution is not void but must be corrected in its effects. The voidness of defective management resolutions must be asserted pursuant to Art. 816 CO, which refers to the grounds for nullity of general meeting resolutions (Art. 706b CO), although the grounds for nullity must be interpreted narrowly.
11 The distribution follows the statutory link to the individual common share: Pursuant to Art. 795(2) CO, the articles of incorporation specify the amount of the additional contribution obligation associated with a common share, and pursuant to Art. 795(3) CO, the shareholders are liable only for the additional contributions associated with their own common shares. The decisive factor is therefore the number of ordinary shares held, multiplied by the additional contribution amount specified in the articles of incorporation for each ordinary share. A distribution based on par value ratios results from this only to the extent that all ordinary shares have the same par value; if the par values differ (see Art. 774 CO), the two allocation keys diverge because the upper limit of twice the par value under Art. 795(2), second sentence, CO has a different effect for each ordinary share. By way of comparison: For a cooperative, Art. 871(3) CO refers, on a subsidiary basis, to the amount of the cooperative shares and—in the absence thereof—to the number of members. Deviations in the distribution of additional contributions are permissible under the bylaws but are subject to the principle of equal treatment pursuant to Art. 813 CO.
12 The management may also demand additional contributions on a staggered or selective basis, for example limited to certain ordinary shares or share categories, provided this is consistent with the provisions of the articles of association and the principle of equal treatment of shareholders is upheld.
C. Enforcement, Setting of Deadlines, and Legal Consequences
13 Following the adoption of the resolution, management is obligated to demand that the affected shareholders make the additional contributions. In doing so, a reasonable deadline must be set, the length of which depends on the specific circumstances and what is reasonable for those affected. Upon expiration of the set deadline, the obligation to make additional contributions becomes due. From that point on, the company may sue for payment under civil law or initiate collection proceedings. In addition, the sanctions provided for in the articles of incorporation may apply, such as a contractual penalty. The legal basis for these has changed: Art. 776a of the Swiss Code of Obligations (OR), which listed the contractual penalty as a permissible provision in the articles of incorporation, was repealed by the revision of the law on joint-stock companies with effect as of January 1, 2023; Art. 776 of the Swiss Code of Obligations (OR) has since limited the required content of the articles of incorporation to four points. The permissibility of a contractual penalty related to additional contributions therefore now derives from the autonomy of the articles of incorporation in conjunction with Art. 795(1) of the Swiss Code of Obligations (OR); pursuant to Art. 797 OR, its retroactive introduction requires the consent of all affected shareholders. In addition to the contractual penalty, the company may resort to expulsion for good cause (Art. 823 CO) as well as—as a preventive measure—the statutory refusal to consent to an assignment pursuant to Art. 786(2)(5) CO if fulfillment of the obligation to make additional contributions is in doubt and any required security is not provided.
14 The form of the notice of demand is not regulated by law. Unless the articles of incorporation provide otherwise, the notice may be informal. It is permissible to tailor the demand individually to each shareholder—for example, by email or certified mail. For evidentiary purposes, however, verifiable delivery is always recommended, particularly in the case of disputed demands or those subject to penalties. Two practically significant follow-up questions remain unresolved. The first concerns set-off: Whether a shareholder may set off the obligation to make additional capital contributions against their own claim against the company is not regulated by law. Since additional capital contributions are akin to equity (Art. 826(1) OR) and their repayment under Art. 795b OR is contingent upon freely disposable equity and an audit confirmation, an unconditional set-off would run counter to capital protection—at least in the crisis situation under Art. 795a(2)(1) and (2) of the Swiss Code of Obligations (CO), in which the demand for payment serves precisely to inject liquid funds. On the other hand, this concerns the statute of limitations: The claim for additional contributions is a claim under corporate law without special provisions and, according to the view taken here, is subject to a ten-year statute of limitations from the due date (Art. 127 CO), i.e., from the expiration of the deadline set by management.
D. Consequences of a Resolution Against a Demand
1. Civil Liability Arising from the Resolution
15 The demand for additional contributions falls within the management’s discretion in accordance with its duties. In this regard, Art. 812(1) CO is central: managing directors must perform their duties with the utmost care and safeguard the interests of the company in good faith. This duty of care corresponds to that under Art. 717( 1 CO and requires conduct assessed objectively against the standard of a conscientious management. Pursuant to Art. 827 CO, limited liability company (GmbH) law refers to the rules of stock corporation law (Art. 754 CO) with regard to liability, such that managing directors are liable for damages resulting from a breach of duty.
16 In particular, if a statutory ground for demanding repayment under Art. 795a(2)(1) CO exists and the management does not resolve to demand additional contributions despite this situation, a breach of duty may be found in the event of subsequent bankruptcy. Although there is no expressly codified obligation to demand additional contributions, the liability of the management increases with growing economic risk. In financial matters, a particularly careful assessment is required. If the obligation to make additional contributions is not enforced despite the existence of a statutory basis, this may give rise to liability under Art. 827 in conjunction with Art. 754 CO—for example, if the omission contributes to the worsening of the crisis situation. It should be noted here that the grounds for demanding additional contributions under subsections 1 and 2 apply prior to a financial crisis—capital loss within the meaning of Art. 725a(1) of the Swiss Code of Obligations (OR) or imminent insolvency within the meaning of Art. 725(2) OR—which complicates the assessment of whether the demand is truly necessary as an “early” restructuring measure. With regard to the liability of management, it must also be taken into account that the standard of liability under tort law must not be based retrospectively on ex post knowledge. Rather, the decisive factor is whether the decision was commercially justifiable from an ex ante perspective (business judgment rule). The court’s assessment must not replace management’s freedom of judgment and discretion. This understanding of liability is consistent with the principle that business decisions, when made with due diligence, must generally be accepted—even if they prove to be inappropriate in hindsight.
17 The company itself, represented by its management, is primarily entitled to bring a lawsuit. In practice, it is rare for the management to resolve to file a lawsuit against one or more members of the management. Due to the principle of self-management in a GmbH, all shareholders are, in principle—barring exceptions specified in the articles of incorporation—also managing directors (Art. 809(1) OR). Accordingly, it is particularly difficult to determine the degree of contributory negligence on the part of the plaintiff shareholder in cases where the management has failed to enforce the obligation to make additional contributions in breach of its duties. Furthermore, the solution of having the shareholders’ meeting—rather than the management—pass a resolution to file a lawsuit against one or more members of management is also not realistic. In the event of bankruptcy, the company’s creditors would then also be entitled to bring a lawsuit.
18 Thus, while the demand is formally optional, in practice it involves significant pressure to make a decision. Management must properly document the decision to assert the claim. This is all the more true when a statutory ground for demanding additional contributions is met but no resolution to do so is passed. Careful record-keeping protects not only the company but also the corporate bodies themselves from subsequent liability claims. Situations involving self-management pursuant to Art. 809(1) of the Swiss Code of Obligations (OR), where managing partners are themselves obligated to make additional contributions. If a demand is waived to avoid personal financial burdens, a conflict of interest exists. In such cases, the business judgment rule applies only to a limited extent, as its application requires that the decision be guided exclusively by the company’s interests.
2. Criminal Law Consequences of a Resolution
19 In addition to civil liability, the obligation to demand additional contributions may also give rise to criminal law implications. In particular, the offense of mismanagement under Art. 165 of the Swiss Criminal Code (StGB) may apply if the management, despite an obvious crisis situation—such as a net loss or impending insolvency—fails to conduct an audit or demand additional contributions in breach of its duty and thereby causes or exacerbates the company’s over-indebtedness or insolvency. Not every instance of negligence is relevant to this offense; rather, only gross economic misconduct that exceeds the limits of commercially justifiable risk is relevant. The failure to demand additional contributions generally does not fall under Articles 163 or 164 of the Swiss Criminal Code (StGB), as these offenses require an active, intentional reduction of assets.
III. Prerequisites (Par. 2)
20 Pursuant to Art. 795a, Par. 2 of the Swiss Code of Obligations (OR), the assertion of additional capital contributions requires that one of the three legally prescribed grounds for demanding such contributions be met: a net loss (item 1), a liquidity shortage (item 2), or a statutory requirement for equity capital (item 3). This list is exhaustive; other scenarios for demanding additional contributions are not permitted. While items 1 and 2 concern legally defined crisis situations and automatically apply in the case of generally stipulated obligations to make additional contributions, item 3 requires a specific purpose defined in the articles of incorporation. Management may not arbitrarily expand the statutory framework for the call for additional capital under item 3 or define new purposes.
A. Net Loss (Section 1)
1. Definition and Functional Classification
21 The grounds for a call for additional contributions under Section 1 exist when the sum of the share capital and the statutory reserves —meaning both capital reserves within the meaning of Art. 671 CO and retained earnings within the meaning of Art. 672 CO—is no longer covered by the company’s assets. This wording is based on the concept of capital loss in Art. 725a CO, but differs from it in terms of terminology and content. In contrast to stock corporation law, limited liability company (GmbH) law defines its own, lower trigger threshold in the context of the obligation to make additional contributions. Art. 725a(1) OR applies when the assets, less liabilities, no longer cover half of the sum of share capital, statutory capital reserves that cannot be repaid to shareholders, and statutory profit reserves. Art. 795a(2)(1) OR, by contrast, applies as soon as there is a complete shortfall in share capital and statutory reserves—that is, significantly earlier. It is important to note a discrepancy in the scope of application: Unlike Art. 725a(1) CO, Art. 795a(2)(1) CO does not limit the statutory reserves to the non-refundable portion. It remains unclear whether this difference is intentional or whether it should be harmonized through the analogous application of stock corporation law pursuant to Art. 820 CO. The wording argues against such harmonization: Art. 795a CO is a provision specific to limited liability companies (GmbH) and is not the subject of the reference in Art. 820 CO.
22 There is no uniform terminology in the literature for a capital shortfall within the meaning of subparagraph 1: The prevailing doctrine refers to a net loss. However, the term capital loss is also sometimes used, which can lead to confusion with Art. 725a CO and should therefore be avoided. The threshold under Art. 795a(2)(1) OR is significantly lower than that for a capital loss within the meaning of Art. 725a OR, which only occurs when coverage falls below 50%. Meier-Hayoz and Forstmoser refer to the range between full coverage and a capital loss under Art. 725a OR as “incipient capital loss”—an early indicator of financial distress that does not yet trigger a legally binding obligation to restructure, but nevertheless requires monitoring and, if necessary, early action. The concept of a net loss in limited liability company (GmbH) law must also be distinguished from that in cooperative law (Art. 871, para. 1 OR). Nigg notes that, according to Art. 871, para. 1 OR, “a net loss exists not only in the event of over-indebtedness, but also in the case of a negative net worth.” This leads to the definition of negative net worth, which Crone describes as follows: “A negative net worth exists when the share capital—consisting of share capital and participation capital—and the statutory reserves are no longer fully covered by the company’s assets.” In contrast, Meier-Hayoz and Forstmoser define a negative equity position more narrowly—namely, as a shortfall in the par value of capital, excluding statutory reserves. This definition does not correspond to Art. 795a, para. 2, item 1 of the Swiss Code of Obligations (OR).
2. Balance Sheet Basis and Valuation Issues
23 The audit is based on a properly prepared balance sheet that complies with the applicable accounting regulations (see Art. 958 et seq. CO) and has been approved by the shareholders’ meeting (Art. 804(2)(5) CO) . In addition to the annual balance sheet, interim or restructuring balance sheets may also serve as a basis, provided they have been prepared in accordance with formal requirements and, where applicable, audited.
24 In practice, the question also arises as to what extent hidden reserves should be taken into account when assessing the balance sheet loss. A distinction is made between “mandatory reserves” arising without affecting income, which are disregarded, and arbitrarily formed “administrative reserves” or “discretionary reserves” recognized in income, which must generally be reversed before calling for additional contributions. In exceptional cases, such reserves may be retained if there is an objective, factual reason to do so—such as company-specific risk hedging or strategic provisions. There is therefore no blanket obligation to release hidden reserves, but rather a requirement for a differentiated assessment based on the principle of factual appropriateness.
3. Relationship to the Restructuring Obligation under Art. 820 in conjunction with Art. 725a CO
25 The demand for additional contributions pursuant to Section 1 CO occurs before a capital loss occurs within the meaning of Art. 725a CO—that is, before the statutory restructuring obligation takes effect, and thereby enables an early response to financial difficulties. Even though the obligation to make additional contributions can be understood as a restructuring-related instrument, in the strict sense it does not yet constitute a restructuring measure within the meaning of Art. 820 in conjunction with Art. 725a OR. Against this backdrop, a tiered restructuring framework emerges in limited liability company (GmbH) law: (1) Release of existing hidden and open reserves, (2) demand for statutory additional contributions (Art. 795a, para. 2, item 1 CO), (3) legally mandatory restructuring measures (Art. 820 in conjunction with Art. 725a CO), (4) debt restructuring moratorium or bankruptcy (Art. 293 et seq. SchKG). This sequence is not legally mandatory, but it corresponds to the economic principle of a phased crisis management approach.
26 If there is a statutory obligation to make additional contributions, management is entitled to demand such contributions but is not obligated to do so in every case. Rather, it is incumbent upon management, within the scope of its business judgment, to assess whether a demand for additional contributions is appropriate and in the company’s best interest. If a demand is not made despite the existence of a net loss within the meaning of Art. 795a(2)(1) OR, this may—depending on the circumstances—constitute a breach of the duties of care or loyalty pursuant to Art. 754 or Art. 812 OR. If the obligation to make additional contributions in the event of a net loss is not enforced and the company’s capital falls below half of its registered capital (capital loss), the statutory obligation to restructure under Art. 820 in conjunction with Art. 725a CO also applies. Management is then obligated to take appropriate measures to resolve the crisis—such as through debt waivers, subordination of claims, capital reduction, or the injection of new funds—after the statutory obligations to make additional contributions have been exhausted and existing reserves have been dissolved.
27 The basis for demanding additional contributions under paragraph 1 is unilaterally mandatory: The articles of incorporation may not weaken the statutory threshold for demanding additional contributions in the event of a balance sheet loss in favor of the shareholders—for example, by stipulating that a demand is permissible only upon the occurrence of a capital loss within the meaning of Art. 725a(1) CO. By contrast, stricter provisions in the articles of incorporation are permitted, such as by setting a stricter permissible coverage ratio—for example, by permitting the demand for additional capital contributions as soon as twice the sum of the share capital and statutory reserves is no longer covered. Such provisions trigger an early warning signal, which is in the interest of third parties, as the financial health of the GmbH must be restored sooner. This provision serves legal certainty and prevents an arbitrary restriction of permissible restructuring measures. Finally, it is important to note that such stricter requirements are only permissible within the framework of section 1; independent, more far-reaching grounds for demanding additional contributions can only be established through a specific provision under section 3.
4. Relationship to a Capital Reduction with Simultaneous Increase
28 The demand for additional contributions in the event of a net loss can be understood as an early restructuring measure that functionally resembles a capital reduction with simultaneous increase (“harmonica”) under stock corporation law. In the “harmonica” process, the share capital is reduced to zero for restructuring purposes and simultaneously increased again; the previous shareholder rights are extinguished upon the reduction, and issued shares must be canceled (Art. 653q in conjunction with Art. 653r(1) CO). Existing shareholders are entitled to an inalienable subscription right upon the subsequent increase (Art. 653r(2) CO). The obligation to make additional contributions under section 1, on the other hand, is aimed at stabilizing the existing capital structure and requires neither a capital reduction nor an increase. This is the most important practical difference: While the “harmonica” structure, as a capital change, mandatorily requires an amendment to the articles of incorporation and public notarization, the nominal share capital remains unaffected when additional contributions are called for; a resolution by the management is sufficient. The call for additional contributions is thus the significantly less burdensome instrument—though it does require an existing statutory basis (Art. 795(1) CO). However, a capital increase may only be carried out if all additional capital contribution obligations provided for in the articles of incorporation have been fulfilled beforehand (Art. 782(3) CO).
B. Liquidity Shortfall (Subparagraph 2)
1. Definition and Functional Classification
29 Art. 795a(2)(2) CO permits the demand for additional contributions if the company cannot properly continue its business operations without additional funds. In legal scholarship and the legislative commentary, the term liquidity crunch is used, which is not defined by law. This refers to situations in which short-term payment problems arise without there already being a balance sheet or capital deficit. If the limited liability company (GmbH) cannot overcome the liquidity crunch, it faces the threat of insolvency, which triggers an obligation to restructure pursuant to Art. 725(2) OR.
30 With this provision, the legislature intended to create a preventive instrument that allows the company, in the event of impending insolvency, to rapidly mobilize equity capital, in order to maintain its business operations. The obligation to make additional contributions serves not to structurally strengthen capital, but rather to secure operational liquidity within the framework of short-term financial planning.
31 The distinction between para. 1 and para. 2 is significant in practice, as both scenarios pertain to financial crisis situations. While paragraph 1 focuses on a net loss on the balance sheet — that is, equity that is no longer covered—paragraph 2 concerns solvency, i.e., the ability to meet short-term liabilities on time. Section 2 thus applies earlier than Section 1: It allows for intervention in cases of purely liquidity-related bottlenecks—for example, when credit lines have been exhausted or suppliers no longer grant payment terms. This is an operationally motivated criterion that exists independently of equity coverage. The basis for enforcement under Section 2 is —as is the case in Section 1—unilaterally mandatory.
2. Balance Sheet Basis and Valuation Issues
32 Management must specifically demonstrate that, without additional funds, proper management would no longer be possible. A general need for capital or broad-brush forecasts for the future are not sufficient. What is required is a verifiable liquidity bottleneck, as evidenced, for example, by a short-term negative liquidity forecast. The company must also demonstrate that no alternative sources of financing are available—for example, because credit lines have been exhausted, assets cannot be liquidated quickly, or creditors are unwilling to grant payment deferrals.
33 The duty to monitor liquidity arises from Art. 810(2)(3) and Art. 820 in conjunction with 725(1) of the Swiss Code of Obligations (OR). Management must recognize impending insolvency in a timely manner and consider appropriate measures. An inactive stance, even though grounds for demanding action exist, may—particularly in the event of subsequent bankruptcy—entail liability consequences pursuant to Art. 754 OR. However, not just any financial need may justify such a demand: According to the Explanatory Memorandum on the Limited Liability Company (GmbH), it is necessary that there be imminent insolvency in the short term, an inability to procure new liquid funds, or a refusal by creditors to extend payment deadlines. These scenarios present a conflict of interest: While management wishes to demand additional capital contributions as early as possible to protect itself against liability risks, shareholders are often only interested in making such contributions if there are realistic prospects for restructuring. It is therefore advisable to clarify these vague criteria in the articles of incorporation in order to define the basis for decision-making and expectations.
3. Relationship to the Restructuring Obligation under Art. 820 in conjunction with Art. 725 CO
34 The obligation to make additional contributions under Art. 795a(2)(2) CO functionally fulfills a role similar to that of Art. 725(1) CO in stock corporation law, which is designed as an “early warning indicator” for liquidity crises and obligates the board of directors to continuously monitor the company’s solvency. Due to the reference in Art. 820 CO to stock corporation law, this monitoring obligation also applies to the limited liability company (GmbH). A key difference, however, is that Art. 795a(2)(2) CO provides a specific instrument governed by the articles of association: the demand for additional capital contributions. While Art. 725(1) CO imposes only a general duty of liquidity monitoring on management (as it does on the board of directors of a stock corporation), Art. 795a(2)(2) CO specifies this duty in limited liability company law, by providing the company with a legally regulated means to do so. The demand for such additional contributions is not automatic, but falls within the scope of the management’s business discretion. In doing so, management must weigh various restructuring instruments against one another and assess whether additional contributions appear preferable to other financing or restructuring measures.
35 Against this backdrop, a tiered crisis management framework also emerges in limited liability company law: (1) liquidity monitoring and the use of internal resources (including additional contributions pursuant to Art. 795a, para. 2, subpara. 2, and Art. 725, para. 1, of the Swiss Code of Obligations); (2) mandatory statutory reorganization measures pursuant to Art. 820 in conjunction with Art. 725(2) of the Swiss Code of Obligations (OR); (3) a stay of enforcement or bankruptcy (Art. 293 et seq. of the Swiss Debt Enforcement and Bankruptcy Act (SchKG)). This tiered crisis management approach serves to stabilize the company at an early stage and reduces the risk of an abrupt transition to insolvency.
C. Grounds for Calling in Capital under the Articles of Association (Section 3)
1. Definition and Functional Classification
36 In Section 3, the legislature has consistently developed the obligation to make additional contributions into an independent financing instrument based on voluntary provisions in the articles of association. It can represent a practical alternative to a capital increase or external financing, particularly in companies with long-term shareholder commitment, such as SMEs or family-owned businesses. The provision enables the company to respond specifically to foreseeable investment needs, e.g., market expansion, research projects, acquisitions of equity interests, or the strengthening of key areas essential to the company’s sustainable growth. This provides the GmbH with an independent source of financing that does not exist under stock corporation law due to the lack of a statutory system of additional capital contributions.
2. Formal Requirements: Clarity and Specific Purpose
37 A call for additional contributions based on Section 3 can only be enforced if the purpose of the call is sufficiently defined and specifically described in the articles of association. General or blanket formulations such as “to finance investments” or “to acquire equity interests” are not sufficient. A specific, company-related description of the purpose is required, such as “for the acquisition of majority stakes in distribution companies” or “for the construction of a production facility.” Furthermore, the provision in the articles of incorporation must always be related to the company’s purpose to ensure that the relevance to the purpose of the demand is guaranteed. These requirements serve to ensure legal certainty and protect the shareholders. The purpose must be expressly stipulated in the articles of incorporation themselves; a mere reference to a set of bylaws is not permitted. This follows from the structure of the law: Art. 804(2)(12) of the Swiss Code of Obligations (OR) expressly permits more detailed provisions in a set of regulations—but only for ancillary performance obligations. There is no corresponding delegation provision for additional capital contribution obligations. This qualified silence must be interpreted as an exclusion. This conclusion is confirmed by the principle of public disclosure in the commercial register: Pursuant to Art. 73(1)(j) of the Commercial Register Ordinance (HRegV), in the case of obligations to make additional contributions, a reference to the detailed description in the articles of association is entered in the register; only through the articles of association, as a document in the commercial register, does the purpose of the claim become visible to third parties. A shift to a set of regulations would undermine this public disclosure.
38 Even if the purpose set forth in the articles of incorporation is correctly described, the demand under section 3 must not be made arbitrarily. Rather, management is obligated to first examine whether less restrictive means of raising capital are available (e.g., borrowing, use of reserves). This unwritten principle of subsidiarity arises from the principle of exercising rights with due consideration (Art. 2 of the Swiss Civil Code) and has been recognized on multiple occasions in Federal Supreme Court case law. Only if the chosen purpose of the call for additional contributions corresponds to an objective urgency and no reasonable alternative financing is available may the company resort to the obligation to make additional contributions. This constitutes a key safeguard against the abusive imposition of burdens on shareholders—particularly in favor of minority shareholders.
3. Relationship to Sections 1 and 2
39 Section (3) of the Swiss Code of Obligations (OR) expands the grounds for demanding additional contributions beyond traditional crisis scenarios. While Section 1 (net loss) and Section 2 (liquidity crunch) are linked to legally defined financial emergencies, Section 3 permits the demand for additional funds to meet equity requirements defined in the articles of association, which may exist independently of restructuring or crisis situations—such as to finance certain investments, expansions, or strategic projects. It is important to note that Section 3 is not intended to expand, tighten, or bring forward the legally mandatory grounds for a capital call set forth in Sections 1 or 2. Rather, Section 3 independently opens up the possibility of defining, in the articles of incorporation, clearly specified, additional purposes for a call for contributions, which may also include less stringent requirements than the statutory thresholds set forth in sections 1 and 2—without, however, affecting their statutory function as restructuring mechanisms. Section 3 thus serves an independent financing purpose and must not be confused with an expansion or tightening of the conditions for calling in capital under Sections 1 and 2.
40 Unlike the statutory grounds for calling in capital under Sections 1 and 2, which already apply if the articles of association provide for a general obligation to make additional contributions, Section 3 of the Swiss Code of Obligations (OR) mandatorily requires that the articles of association contain a clearly and specifically worded, objectively justified description of the purpose. A mere blanket authorization—such as “to finance investments” — is not sufficient. Provisions in the articles of association are permissible, for example, if they specifically describe the acquisition of additional commercial real estate or expansion into defined foreign markets, specifying a debt-to-equity ratio where applicable. In the absence of such a precise statutory basis, a demand for additional contributions based on Section 3 is impermissible.
IV. Bankruptcy (Para. 3)
A. Maturity
41 Art. 795a, para. 3, of the Swiss Code of Obligations (OR) provides that outstanding capital calls become due upon the opening of bankruptcy proceedings against the company. The term “outstanding capital calls” initially encompasses those capital calls that management has already demanded and communicated to the shareholders with reasonable notice, but which have not yet been paid; if this period has not yet expired at the time of the opening of bankruptcy proceedings, the contributions nevertheless become due upon the opening. According to the view taken here (see below, N. 49 et seq.), the term extends further and encompasses all statutory capital calls that have not yet been paid, within the upper limit set forth in Art. 795, para. 2, CO. The provision is constitutive. In particular, it cannot be traced back to Art. 208(1) of the Swiss Debt Enforcement and Bankruptcy Act (SchKG): This provision causes all of the debtor’s obligations to become due and payable, and thus the liabilities of the bankruptcy estate. By contrast, the claim for additional contributions is a claim of the company against its shareholders and thus an asset that falls into the bankruptcy estate pursuant to Art. 197(1) of the Swiss Debt Enforcement and Bankruptcy Act (SchKG). Without Art. 795a(3) of the Swiss Code of Obligations (OR), the due date would depend on the expiration of the deadline set by management; the legislature deliberately eliminated this dependency in the event of bankruptcy. The provision thus serves an independent purpose of protecting creditors—a finding that is relevant to the question of jurisdiction discussed below.
B. Authority of the Bankruptcy Administrator
42 The Explanatory Memorandum on the Revision of Limited Liability Company Law states that, from the time bankruptcy proceedings are opened, the management is no longer responsible for demanding additional capital contributions; rather, this responsibility falls to the bankruptcy administrator. In legal scholarship, however, this statement is interpreted in different ways: While some scholars assume that the authority to make decisions is transferred to the bankruptcy administrator upon the opening of bankruptcy proceedings, others view the role of the bankruptcy administrator as limited to mere executive authority.
43 It is undisputed that, pursuant to Art. 240 of the Swiss Bankruptcy Act (SchKG), the bankruptcy administration—as a legally appointed executive body—assumes the role of the company and its governing bodies, as is also evident from Art. 740(5) of the Swiss Code of Obligations (OR) in conjunction with Art. 821a OR. It acts in its own name, but exclusively in the interest of the bankruptcy estate and the creditors. By operation of law, it is authorized to take all actions necessary for the liquidation and realization of the estate—including conducting litigation, collecting claims, and enforcing claims in court.
44 The management does not lose its status as an organ upon the opening of bankruptcy proceedings. Rather, pursuant to Art. 739(2) CO, the powers of the organs are limited to those acts that are necessary for the conduct of the liquidation but which, by their nature, cannot be performed by the liquidators. Art. 740(5), second sentence, CO (in conjunction with Art. 821a of the Swiss Code of Obligations (OR)) expressly confirms this for bankruptcy: The organs retain the power of representation to the extent that representation by them is still necessary. This does not exclude all acts of the organs, but rather those that interfere with the bankruptcy administration’s right of management and disposal. The right to dispose of and administer the estate, however, is transferred in full to the bankruptcy administration, which acts as a legally appointed executive body pursuant to Art. 240 of the Swiss Debt Enforcement and Bankruptcy Act (SchKG). It is exclusively responsible for the liquidation and realization of existing claims; in principle, it may not create new obligations. Thus, the role of the company and its governing bodies under bankruptcy law is strictly separated from the administration of the estate (principle of separation). Any breaches of duty prior to the opening of bankruptcy proceedings—such as the failure to demand additional capital contributions despite the statutory requirements being met—may be relevant under civil or criminal law. However, once bankruptcy has been declared, independent restructuring of the company is no longer possible.
45 Although the shareholders’ meeting formally continues to exist and may still convene to address purely internal company matters—such as amending the articles of incorporation, electing new corporate bodies, or preparing for the company’s possible continuation after the conclusion of bankruptcy proceedings—such resolutions have no effect whatsoever on the bankruptcy estate or the creditors. They take effect exclusively within the company’s internal structure and must not result in the estate being burdened by new obligations or organizational acts.
1. Authority to Pass Resolutions
46 According to some legal scholars, the bankruptcy trustee is entitled to demand additional contributions even if the management failed to do so prior to the commencement of bankruptcy proceedings. The trustee may therefore pass the resolution to demand such contributions on its own. This view is based on the consideration that the statutory obligation to make additional contributions serves to protect creditors and fosters confidence in the company’s financial stability in its external relations. This confidence should also persist during bankruptcy. Accordingly, the obligation to make additional contributions in bankruptcy functionally corresponds to a subsidiary liability of the shareholders, which the bankruptcy trustee may enforce in order to realize the liability base for the benefit of the body of creditors.
2. Authority to Enforce
47 According to the other school of thought, the bankruptcy trustee has no independent decision-making authority. The due date for additional contributions depends exclusively on whether the management passed a valid resolution to demand such contributions pursuant to Art. 795a(1) of the Swiss Code of Obligations (OR) prior to the opening of bankruptcy proceedings. Only in this case may the bankruptcy administration collect the payment. The term “outstanding additional contributions,” according to this school of thought, should therefore refer only to contributions that have already been resolved but not yet paid, for example, when the payment deadline has not yet expired.
48 According to this view, the bankruptcy trustee lacks the authority to replace or retroactively issue an original resolution demanding payment. The “demand for payment” mentioned in the legislative report is to be understood purely as an enforcement action. The bankruptcy trustee may therefore only collect what has already been legally and effectively demanded. Consequently, the statutory obligation to make additional contributions in the event of bankruptcy is ineffective in the absence of a collection resolution—with potentially adverse consequences for creditors’ interests.
3. Assessment
49 The decisive factor in favor of the opinion advocated here is a systematic argument that has so far been overlooked in the discussion: Under Art. 795d(1) of the Swiss Code of Obligations (OR), the obligation of former shareholders to make additional contributions continues for three years; however, under Art. 795d(2) OR, they are only required to fulfill this obligation if the company goes into bankruptcy. This provision presupposes that the obligation to make additional contributions is triggered by the bankruptcy. If one were to follow the “enforcement authority” theory, Art. 795d(2) of the Swiss Code of Obligations (OR) would largely be rendered meaningless: A call for additional contributions that had already been legally validly demanded prior to withdrawal would be owed in any case and would require no special provision; in all other cases, once bankruptcy proceedings have been opened, there would be no one left who could pass the necessary resolution, meaning that the three-year continued liability would be rendered moot.
50 Added to this is the issue of authority: Pursuant to Art. 240 of the Swiss Bankruptcy Act (SchKG), the bankruptcy administration handles all transactions pertaining to the preservation and realization of the estate and, pursuant to Art. 740(5) CO in conjunction with Art. 821a CO, takes the place of the liquidation bodies. The demand for additional contributions constitutes the realization of an asset of the estate and is thus a disposition transaction within the meaning of Art. 240 SchKG; it does not create a new obligation but rather actualizes one already established by the articles of incorporation. The fact that Art. 739(2) OR leaves residual powers to the corporate bodies does not preclude this, because the demand, by its very nature, can be made by the bankruptcy trustee.
51 The view that the bankruptcy administration possesses independent decision-making authority is therefore correct. However, this authority is subject to specific purposes: The bankruptcy administrator may demand payment only to the extent that this serves to satisfy the creditors and must observe the principle of equal treatment in doing so. The general procedural rules apply to the enforcement of such claims; if the claim is disputed, it may be assigned to individual creditors for enforcement pursuant to Art. 260 SchKG.
C. Distinction from Art. 871(4) OR
52 Art. 871(4) OR permits the cooperative to demand additional contributions at any time, i.e., both before and during bankruptcy or composition proceedings. Prior to the opening of bankruptcy proceedings, the cooperative’s board of directors is responsible: it determines the net loss and, if necessary, activates mechanisms provided for in the bylaws to cover the loss. In the event of bankruptcy, the authority to demand additional contributions expressly passes to the bankruptcy trustee. In practice, the demand serves exclusively to secure and realize the estate for the benefit of the creditors. In bankruptcy, the obligation to make additional contributions loses its restructuring-related function and becomes a security mechanism that, economically speaking, closely resembles joint and several liability of the members. The law grants the bankruptcy trustee original decision-making authority in this regard.
53 This clear transfer of authority to the bankruptcy administrator is not found in limited liability company (GmbH) law. One might draw the reverse conclusion from this: The legislature has expressly regulated this authority in cooperative law, but not in limited liability company law, even though both sets of regulations were revised in the same amendment. This objection is not convincing. Art. 871(4), second sentence, OR stems from the fact that additional contributions to a cooperative may be demanded at any time pursuant to Art. 871(4), first sentence, OR; the provision therefore had to clarify who is entitled to this power at any time in the event of bankruptcy. Art. 795a(3) of the Swiss Code of Obligations (OR) resolves the same problem in a different way, namely through statutory demand for payment. Therefore, one cannot assume that there is a qualified silence on this point. However, this merely refutes the reverse inference; it does not establish an analogy. A simple transposition of Art. 871(4) of the Swiss Code of Obligations (OR) to the limited liability company (GmbH) is not permissible: The cooperative is structurally different—characterized by the principle of self-help, the personal involvement of its members, and a decentralized organizational structure that allows for broader participation in decision-making. In contrast, the limited liability company (GmbH) concentrates decision-making authority with the management. In addition, there is a difference in legal assessment: Art. 871(1) OR limits cooperative capital calls to covering balance sheet losses, whereas Art. 795a(2) OR recognizes three grounds for such calls. The conclusion reached here (see N. 49 et seq. ) is therefore not based on an analogy to Art. 871(4) CO, but rather on the GmbH’s own framework under Art. 795d(2) CO and Art. 240 SchKG. The comparison with cooperative law serves solely to refute the converse conclusion.
D. Earmarking and Bankruptcy Maturity under Subparagraph 3
54 Specific questions of interpretation arise when applying Art. 795a(3) of the Swiss Code of Obligations (OR) to additional contributions pursuant to paragraph 2, subparagraph 3. Such additional contributions are earmarked and may only be called for a purpose expressly specified in the articles of incorporation—such as the acquisition of a specific piece of real property, the financing of an expansion abroad, or the filing of a patent. When calling for such contributions during the active phase of the company, the management is bound by this statutory purpose.
55 However, if bankruptcy proceedings are initiated against the company, the question arises as to whether earmarked additional contributions may nevertheless become part of the bankruptcy estate. According to prevailing opinion, Art. 795a, para. 3 of the Swiss Code of Obligations (OR) is mandatory in nature and does not distinguish based on the grounds for demanding such contributions. The wording of the law supports a comprehensive call for payment: All additional contributions called for prior to the opening of bankruptcy proceedings but not yet paid—including those earmarked for specific projects—become due upon the opening of bankruptcy proceedings and form part of the estate. The fact that the original intended use is no longer feasible does not preclude their inclusion in the estate.
56 According to the view taken here (see above, n. 49 ff.), the question arises in a more pointed form: May the bankruptcy administration demand payment of earmarked additional contributions under para. 2, item 3 for the first time, even though the statutory purpose—such as the acquisition of real property or expansion abroad—is no longer achievable as a result of the insolvency? The answer follows from the change in function mandated by Art. 795a, para. 3 of the Swiss Code of Obligations (OR): Upon the opening of bankruptcy proceedings, the statutory purpose of satisfying creditors replaces the statutory purpose specified in the articles of association. The purpose restriction under paragraph 2, item 3 limits the management’s authority to demand additional contributions during the active phase of the company; it is not a condition of the claim itself, but rather a limitation on authority within the company. If the management’s authority ceases, so too does its obligation to adhere to the statutory purpose. The bankruptcy trustee is thus authorized to demand even contributions earmarked for a specific purpose; however, the extent of this authority remains limited by the statutory upper limit (Art. 795(2) CO) and the needs of the estate. The opposite would lead to a contradiction in legal assessment: specifically, the obligation to make additional contributions—as stipulated in Section 3, which is often substantial in amount—would remain unenforceable in bankruptcy, even though the shareholders benefited from it during the crisis.
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Schober Roger/Avdyli-Lüginbühl Monika, in: Kren Kostkiewicz Jolanta/Vock Dominik (Hrsg.), Schulthess Kommentar, Bundesgesetz über Schuldbetreibung und Konkurs, 4. Aufl., 2017 Basel (zit. SK).
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 GmbH).
Stäubli Christoph/Hohler Dominik, in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).
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.
Trechsel Stefan/Ogg Marcel, in: Trechsel Stefan/Pieth Mark (Hrsg.), Praxiskommentar Schweizerisches Strafgesetzbuch, 4. Aufl., 2021 Basel (zit. PK).
von der Crone Hans Caspar, Aktienrecht, 2. Aufl., Bern 2020.
Watter Rolf/Roth Pellanda Katja, in: Watter Rolf/Vogt Hans-Ueli (Hrsg.), Basler Kommentar, Obligationenrecht II, 6. Aufl., Basel 2024 (zit. BSK).