Contracts of indefinite duration, whether employment or lease agreements, can be terminated by either party in accordance with Articles 335(1) CO and 266a(1) CO.
The date of termination is the date of notification, meaning when the notice reaches the recipient. Thus, the date of dispatch is not relevant.
Receipt of Notification
When a document is sent by ordinary mail, receipt occurs when the letter is deposited in the recipient’s mailbox or post box, assuming the recipient is expected to collect the mail at that time. Proving the date of receipt can be problematic for both the sender and the recipient.
In most cases, registered mail is used for sending notices. This method provides a record of both dispatch and receipt, making it easier to calculate deadlines. When registered mail is handed directly to the recipient or an authorized third party, receipt occurs at that moment.
For registered mail that is not delivered due to the recipient's absence, and for which a notice of collection has been left by the postal agent, there are two theories:
Absolute Receipt Theory: According to this theory, receipt occurs as soon as the recipient can pick up the mail at the post office based on the notice of collection. This is generally the day after the notice is deposited, or on the same day if it is expected that the recipient will collect it immediately. Whether the recipient actually reads the notice is not decisive. This means that the deadline starts when the notice arrives within the recipient’s sphere of influence (Machtbereich) such that, in normal circumstances, they can be expected to become aware of it (Federal Supreme Court Decision 4A_293/2016 of December 13, 2016, para. 4.1).
Relative Receipt Theory: According to this theory, registered mail is considered received when the recipient actually picks it up at the post office, or in any case, on the seventh and last day of the postal holding period.
In both employment and tenancy law, the start of the deadline for contesting a termination and its computation are governed by substantive law rather than procedural rules (CPC). Therefore, termination communication is subject to the absolute receipt theory.
Thus, even if the recipient is absent, a registered termination notice that is not delivered is considered received either on the same day the notice is deposited in the mailbox, assuming the recipient is expected to pick it up immediately, or, as a general rule, on the following day.
This means the recipient is responsible for organizing their affairs to be able to acknowledge the termination as soon as it is within their sphere of influence (cf. ATF 137 III 208, para. 3.1.2).
Exceptions in Tenancy and Employment Law
In tenancy law, the absolute receipt principle applies, except in two cases where the jurisprudence has recognized the relative theory:
Notice of Rent Increase: For communication of a rent increase notice under Article 269d CO.
Notice of Payment Deadline: For communication of a payment deadline in case of late rent payment under Article 257d CO.
In employment law, there is an exception to the absolute theory when the employee is on vacation. In this case, a termination notice sent to the employee’s home during their vacation is deemed received only upon their return, unless the employee has stayed at home during the vacation period, forwarded their mail to their vacation address, or informed their employer of their vacation plans (Federal Court Decision 4P.307/1999 of April 5, 2000, para. 3.c).
This difference between tenancy and employment law arises because, according to Article 329(2) CO, it is the employer who sets the employee's vacation dates considering their preferences, whereas tenancy law does not have a comparable institution to vacations. Thus, in tenancy law, there is no distinction based on whether the tenant is absent or on vacation.
However, if the tenant is absent involuntarily and this absence prevents them from becoming aware of the notice of collection (e.g., due to an emergency hospitalization), the receipt of the termination notice and the start of the contestation period should only begin when it can reasonably be expected that the involuntarily absent tenant can become aware of the notice.
Further Information
For more detailed information on this subject, please feel free to contact us. You can reach us by phone at +41 21 351 30 00 or by email at info@cjdv.ch.
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