Rückerstattung von Leistungen nach Art. 678 OR

Under the existing law, restitution claims as set out in art. 678 of the Swiss Code of Obligations (CO) have been rarely invoked. Reasons for this are the strict requirements of art. 678 para. 2 CO and, more importantly, deficiencies in the procedural incentive structure. In the present article, controversial issues regarding the existing law are analysed and commented on, followed by a discussion of the Federal Council’s proposal for a revised art. 678 CO. From our point of view, the proposal generally satisfies its aim to improve the applicability of corporate restitution claims. However, the desired effects could be better achieved by a wording closer to the ­existing one and through the simplification of procedural aspects.