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- 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
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- Art. 176 FC
- Art. 178 FC
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- Art. 191 FC
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- 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
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- 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
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- 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
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- 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
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- 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
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- 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
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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
- 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. Conditions and Procedures for Repayment
- III. Revival of the Obligation to Make Additional Contributions
- Bibliography
I. General Remarks and Systematic Analysis
1 The repayment of additional capital contributions constitutes an exception to the principle of capital commitment. While the share capital must remain permanently at the company’s disposal and may only be repaid through a formalized capital reduction procedure (Art. 782 CO in conjunction with Art. 653j et seq. CO), Art. 795b CO permits the repayment of additional contributions under certain conditions. Contrary to some scholarly opinions, the repayment of additional contributions is not equivalent to a capital reduction. Although liquidity is withdrawn from the company in this case as well, the repayment does not affect the nominal share capital entered in the Commercial Register, but rather funds that the shareholders have contributed in excess of the paid-in amount of their shares. Additional contributions are not voluntary payments: they are based on a statutory obligation, the amount of which must be specified in the articles of incorporation and may not exceed twice the par value of the share (Art. 795, paras. 1 and 2 CO); they may only be demanded under the conditions set forth in Art. 795a(2) CO and become due upon the commencement of bankruptcy proceedings (Art. 795a(3) CO). The only voluntary decision is whether to provide for a capital call obligation in the articles of incorporation at all. The repayment does not affect the nominal share capital and is therefore not subject to the capital protection provisions of Art. 782 CO in conjunction with Art. 653j et seq. CO. Rather, the legislature has created a separate solution in Art. 795b CO that functionally provides creditor protection by stipulating that repayment may be made exclusively from unrestricted equity—defined as the sum of unrestricted reserves and retained earnings.
2 The legislature deliberately opted against a repayment ban or a waiting period. The preliminary draft for a reform of limited liability company (GmbH) law, which was open for public comment from April 28 to October 31, 1999, regulated the obligation to make additional contributions in Art. 803–803d VE and imposed a time limit on the early repayment of additional contributions already made. The 2001 draft dropped this restriction; Art. 795b of the Swiss Code of Obligations (OR) dispenses with any waiting period. Swiss law thus differs from German law: Although § 30(2) of the German Limited Liability Companies Act (GmbHG) also permits the repayment of paid-in additional contributions only to the extent that they are not required to cover a loss in the share capital, it additionally requires a three-month waiting period beginning with the announcement of the repayment resolution. From today’s perspective, however, a time-based restriction could still be considered appropriate: Even if the substantive requirements for repayment are met, there is a risk that funds will be withdrawn again immediately after the additional contributions have been made—even though the company’s financial situation has not yet stabilized permanently. A brief recovery period could have contributed to stabilizing the company’s financial position. On the other hand, the audit confirmation by a licensed auditor serves as an effective safeguard: it must be refused if the repayment appears unsustainable in light of the company’s earnings and equity situation. Creditor protection is thus guaranteed in substance: Repayment is permissible only if it is fully covered by unrestricted equity and the requirements are documented by an audit confirmation.
II. Conditions and Procedures for Repayment
3 The repayment of additional capital contributions is permitted only under clearly defined conditions. Art. 795b of the Swiss Code of Obligations (OR) requires a two-tier protective framework consisting of substantive (repayment may be made only from unrestricted equity) and formal (audit confirmation by audit experts) requirements. The following sections explain these conditions in detail.
A. Freely Disposable Equity
4 Repayment may only be made at the expense of freely disposable equity. This term refers to the sum of unrestricted reserves and retained earnings—that is, those components of equity that are neither subject to statutory distribution restrictions nor bound by statutory restrictions on use. This ensures that the repayment does not draw upon restricted capital components such as share capital or statutory reserves. It remains to be clarified how the additional contributions made are to be accounted for. Through the reference in Art. 801 of the Swiss Code of Obligations (OR), the reserve provisions under stock corporation law apply; pursuant to Art. 671(1)(3) OR, “other contributions and additional payments made by holders of equity securities” must be allocated to the statutory capital reserve. If the provision were applied strictly according to its wording, such additional contributions would thus constitute the statutory capital reserve and be subject to the distribution restriction of Art. 671(2) CO—which would, in practice, largely block their repayment. The preferred view is that Art. 795b CO, as lex specialis, takes precedence over this restriction: The provision exhaustively governs the repayment of additional contributions made and makes it contingent solely on coverage by freely disposable equity as well as the audit confirmation by a licensed auditor. Otherwise, the flexibility in additional contribution financing intended by the legislature would be rendered meaningless. Nevertheless, it is advisable to report additional contributions separately within equity so that the basis for repayment is transparently documented. The decisive factor is that the required freely available equity is available at the time of repayment. A subsequent reduction in equity—for example, due to later losses—does not render the repayment unlawful. Noteworthy is the terminological difference from Art. 825a of the Swiss Code of Obligations (OR), which refers only to “available equity” in the context of compensation for departing shareholders, whereas Art. 795b OR requires “freely available equity.” The legislature should not be presumed to have intended a substantive distinction: In both cases, the reference is to those components of equity that the company may dispose of without violating statutory or articles-of-association obligations. The addition of “freely” in Art. 795b CO thus serves to clarify, not to restrict. This is confirmed by Art. 783(1) CO, which likewise makes the acquisition of the company’s own common shares contingent upon the existence of “freely disposable equity.” Also noteworthy in this context is Art. 783(3) of the Swiss Code of Obligations (OR): If the common shares to be acquired are subject to an obligation to make additional contributions, this obligation must be waived prior to the acquisition. The legislature thus clearly distinguishes here as well between the mere repayment of additional contributions already made and the elimination of the obligation to make additional contributions as such.
B. Confirmation by a Licensed Audit Expert
5 The audit confirmation issued by the audit expert pursuant to Art. 795b CO fulfills a central control function in the context of the repayment of additional capital contributions made. It does not provide creditors with individual protection—namely, no right to demand security for their claims—but rather operates indirectly through the restriction on the use of capital: It ensures that repayment is made exclusively from freely disposable equity, i.e., from those components of equity that are neither subject to statutory distribution restrictions nor restricted by the articles of incorporation. The formal nature of the audit confirmation parallels the provisions governing capital reductions (Art. 782(4) in conjunction with Art. 653j et seq. OR). The expert to be engaged must be licensed as an audit expert pursuant to Art. 4 RAG. The audit expert does not merely act as an auditor of the calculations but assumes a substantive control function. As a “gatekeeper,” the expert is intended to prevent shareholders from disposing of funds that, from the perspective of the company’s and creditors’ interests, should remain restricted. Article 795b of the Swiss Code of Obligations (OR) does not specify which governing body decides on the repayment. Although Article 795a(1) OR assigns the responsibility for demanding additional capital contributions to the managing directors, no authority for the actus contrarius can be inferred from this provision. It is more likely that the general meeting of shareholders has this authority: Since January 1, 2023, the resolution on the repayment of capital reserves has been among its non-delegable powers (Art. 804(2)(5bis) CO). If additional contributions—as argued here—are classified as capital contributions by the shareholders, the resolution to repay them is reserved for the shareholders’ meeting; the management prepares and executes it. As a precautionary measure, a resolution by the shareholders’ meeting should be obtained in practice anyway. The audit confirmation is an integral part of the repayment process and must be provided in writing, without reservation, and in close temporal proximity to the repayment resolution. If it is obtained prior to the resolution, the condition precedent is waived; however, its temporal proximity is crucial for its informative value and legal effectiveness.
6 The audit confirmation covers three essential elements: (1) proof that additional capital contributions were actually made—since without an actual cash flow, the repayment lacks a basis; (2) proof that, at the time of repayment, sufficient freely available equity is available without resulting in a net loss on the balance sheet; (3) confirmation of a legally effective resolution to repay, which is ideally subject to the condition precedent of a positive audit confirmation. The difference from the audit confirmation under Art. 653m CO is striking. The latter must confirm, based on the financial statements and the outcome of the call for claims, that the creditors’ claims are fully covered despite the capital reduction (Art. 653m(1) CO); it is thus creditor-specific and requires a prior call for claims. By contrast, the audit confirmation under Art. 795b CO is based solely on the company’s equity situation: it confirms that the repayment amount is covered by freely disposable equity, without taking individual creditor claims into account. It is therefore not an individual protective measure in favor of creditors, but rather serves to ensure the substantive integrity of the company’s financial structure.
C. Further Procedural Issues
7 Art. 795b of the Swiss Code of Obligations (OR) requires confirmation by a licensed audit expert, not by an audit firm. The company must therefore engage a licensed audit expert even if it has opted out of the limited audit (opting out pursuant to Art. 818(1) in conjunction with Art. 727a(2) CO) or if its audit firm is licensed solely as an auditor. In these situations—which are common among SMEs—the audit expert must be engaged ad hoc. Article 818(2) of the Swiss Code of Obligations (OR) must also be observed: A shareholder who is subject to an obligation to make additional contributions may request a regular audit of the annual financial statements. If this right is exercised, the statutorily audited annual financial statements form the obvious basis for the audit opinion.
8 Art. 795b CO permits repayment “in whole or in part.” In the case of a partial repayment, the principle of equal treatment must be observed: The managing directors must treat the shareholders equally under the same conditions (Art. 813 CO) . Since the obligation to make additional contributions is linked to the individual share (Art. 795, paras. 2 and 3 CO), the repayment must be made in proportion to the additional contributions actually made; a selective repayment to individual shareholders requires an objective justification.
9 Unlike a reduction of the share capital, the repayment of additional contributions is subject to neither a publication requirement nor a registration requirement. It does not affect the circumstances recorded in the Commercial Register, as the statutory obligation to make additional contributions continues to exist unchanged.
D. Distinction from a Capital Reduction
10 Unlike a formal capital reduction under Art. 782 CO in conjunction with Art. 653j et seq. CO, no call for claims is required for the repayment of additional contributions. This is because the repayment does not involve restricted share capital, but rather funds that the shareholders have contributed in excess of the paid-in capital and which may be reclaimed after the repayment. Nevertheless, the repayment is ultimately similarly risky for creditors, as it reduces the company’s liability base. This makes the two-tiered protective framework of Art. 795b of the Swiss Code of Obligations (OR) all the more important: substantive protection (only unrestricted funds) plus formal protection (certification by an audit expert). The legislature deliberately deemed this combination sufficient, so additional safeguards such as a call for claims were not required. Under stock corporation law, the board of directors notifies creditors in the Swiss Commercial Gazette that they may request security upon filing their claims; such a request must be made within 30 days of publication (Art. 653k, paras. 1 and 2, CO). If more than six months have elapsed between the balance sheet date and the date of the resolution to reduce capital, interim financial statements must be prepared (Art. 653l CO). However, these requirements do not apply without exception under stock corporation law either: If the capital is reduced to partially or fully eliminate a deficit resulting from losses, and if a certified auditor confirms that the amount of the reduction does not exceed the deficit, then the requirement for security, the interim financial statements, the auditor’s confirmation, and the board of directors’ findings are waived (Art. 653p CO). The waiver of the call for claims in Art. 795b CO is thus not an isolated provision: The law relaxes the procedure where no repayment of restricted capital is made to the stakeholders or where the absence of any issues is confirmed by an audit expert. These stricter capital maintenance requirements do not apply to the repayment of additional capital contributions. Here, the legislature has explicitly opted for a simple, business-friendly solution based solely on adequate coverage and external confirmation by a licensed audit expert. The systematic counterpart can be found in Art. 795c of the Swiss Code of Obligations (OR): If the statutory obligation to make additional contributions is reduced or abolished, the provisions governing the reduction of share capital apply mutatis mutandis (Art. 795c(2) OR). The legislature thus subjects the permanent elimination of the liability buffer to the strict capital reduction regime, whereas the mere repayment of contributions already made is subject to the simplified procedure under Art. 795b CO. This distinction is consistent because the obligation to make additional contributions continues after repayment, and the funds may be called upon again.
E. Practical Significance and Risks
11 In practice, the repayment of additional contributions is a sensitive matter. While it is a permissible means of providing shareholders with flexible relief, it entails significant liability risks if the requirements are not carefully examined. Incorrect or incomplete confirmations, erroneous balance sheet entries, or overlooked commitments can trigger liability on the part of the managing directors as well as the audit expert entrusted with the audit confirmation (Art. 827 in conjunction with Art. 754 et seq. CO). In addition, there is the obligation to reimburse under corporate law: If a repayment was made without complying with the requirements of Art. 795b of the Swiss Code of Obligations (CO), the beneficiary shareholders are obligated to reimburse the company pursuant to Art. 800 in conjunction with Art. 678(1) CO. Since the revision of the law governing stock corporations, this claim does not require either fault or bad faith on the part of the recipients; it is available to the company and to each shareholder (Art. 678(4) CO), is subject to a statute of limitations under Art. 678a CO, and, in the event of the company’s bankruptcy, is governed mutatis mutandis by Art. 757 CO (Art. 678(6) CO). Companies and management are therefore well advised to make repayments only with careful legal and business guidance and to document all records thoroughly.
12 In addition, the right to challenge transactions under Art. 285 et seq. of the Swiss Debt Enforcement and Bankruptcy Act (SchKG) must be observed. Since repayments to shareholders are made without equivalent consideration, the challenge of gifts under Art. 286 SchKG takes precedence; in the case of transactions in favor of related parties—which regularly include shareholders—the beneficiary bears the burden of proof that there is no disproportion between the benefit provided and the consideration (Art. 286(3) SchKG). In addition, the action to set aside a transaction on the grounds of intent under Art. 288 SchKG may apply. In contrast, the over-indebtedness avoidance under Art. 287 SchKG applies only to the legal acts exhaustively listed therein and generally does not cover the cash repayment of a capital contribution. Particularly in the case of financially weak companies, repayments should therefore always be reviewed for their viability under insolvency law to avoid subsequent reversal. The tax treatment of additional capital contributions remains unresolved. As early as the consultation process on the preliminary draft, there were calls for legislative clarification of their tax classification; the legislature chose not to address this. In practice, the question arises as to whether additional capital contributions made qualify as contributions within the meaning of the capital contribution principle and whether their repayment can therefore be exempt from withholding tax. It is therefore advisable to obtain a preliminary tax ruling before any repayment is made.
III. Revival of the Obligation to Make Additional Contributions
13 Following a repayment in due form, the obligation to make additional contributions generally revives, provided that the statutory basis still exists and the requirements under Art. 795a of the Swiss Code of Obligations (OR) are met. The repayment thus has no definitive effect of discharge, but merely a temporary extinguishing effect. A renewed call for additional contributions is excluded only if the obligation to make additional contributions is reduced or waived pursuant to Art. 795c of the Swiss Code of Obligations (OR). This requires that the share capital and statutory reserves be fully covered (Art. 795c para. 1 OR). From a procedural standpoint, the provisions governing the reduction of share capital apply mutatis mutandis (Art. 795c(2) CO), which, in addition to the resolution to amend the articles of incorporation, requires, in particular, a call for claims, an auditor’s confirmation, and an entry in the commercial register.
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