Rental car damage claim in Switzerland: what the law says after return

Which law applies to a rental car damage claim in Switzerland?

Swiss law applies when you pick up and return a car in Switzerland from a Swiss company. The lease rules of the Code of Obligations (OR arts 253 ff.) apply to movable things such as cars.

Switzerland is not in the EU: the EU consumer regulations, ECC-Net and ECRCS do not apply to a Swiss rental company, and the Lugano Convention takes the place of the EU rules on jurisdiction. One caveat: the Federal Court decisions below concern leased premises. The articles apply to every leased thing, but no Swiss decision on a rental car was found.

Must the company report damage at return? Yes: OR art. 267a

The company must inspect the car when you return it and tell you immediately which damage it holds you liable for. OR art. 267a(1): “Bei der Rückgabe muss der Vermieter den Zustand der Sache prüfen und Mängel, für die der Mieter einzustehen hat, diesem sofort melden.” (At return, the lessor must check the condition of the thing and report at once the defects the tenant is liable for.)

If the company fails to do so, art. 267a(2) says it loses its claims, except for defects that an ordinary inspection could not have revealed. Hidden defects must be reported “sofort” (immediately) once discovered, art. 267a(3).

How fast is “immediately”? In 4A_388/2013 the Federal Court recited the doctrine that notice is generally due within two or three working days after return, or even up to a week. A lessor who inspected more than two months after getting the keys back had lost the right to claim the repair costs. In 4A_589/2012 a notice given about two months after return “est manifestement tardif” (is clearly late).

The Zurich courts’ guidance adds that the notice must name the defects concretely and show that the lessor intends to hold the tenant liable.

For a rental car this means:

• Key-box return: the company did not carry out the inspection art. 267a requires.
• Damage report written later: a report drawn up after the car was moved or rented out again proves neither the condition at return nor that the damage was only visible later.

Who has to prove the damage?

The rental company does. ZGB art. 8: “Wo das Gesetz es nicht anders bestimmt, hat derjenige das Vorhandensein einer behaupteten Tatsache zu beweisen, der aus ihr Rechte ableitet.” (Unless the law says otherwise, whoever derives rights from a fact must prove it.)

In 4A_589/2012 the Federal Court applied this: the lessor proves the defect beyond normal wear, the resulting damage and its extent. You must return the car in the condition that follows from contractual use (OR art. 267(1)).

One point works against the renter: once a defect beyond contractual use is proven, OR art. 97(1) presumes fault, and you must show you were not at fault. But proof of the defect comes first, and without the immediate notice of art. 267a the claim is lost. Your counter-evidence: dated photos at return and the check-out form listing earlier damage.

Which clauses in Swiss rental terms are void?

OR art. 267(2) is the key rule. “Vereinbarungen, in denen sich der Mieter im Voraus verpflichtet, bei Beendigung des Mietverhältnisses eine Entschädigung zu entrichten, die anderes als die Deckung des allfälligen Schadens einschliesst, sind nichtig.” (Agreements in which the tenant commits in advance to pay, at the end of the lease, compensation that includes anything other than covering actual damage are void.)

Flat damage price lists, fixed “damage handling” or administration fees and any end-of-rental sum beyond the actual damage are void to that extent. Cover, excess and fees in the signed agreement stay valid as far as they cover actual damage.

• OR art. 256(2)(a): clauses in pre-formulated terms that weaken the duty to hand over a car fit for use are void.
• OR art. 163(3): a judge reduces excessive contractual penalties.
• OR art. 100(1): excluding liability in advance for intent or gross negligence is void.
• UWG art. 8: general terms that, contrary to good faith, create a significant and unjustified imbalance to the detriment of consumers are unfair; customers can sue on it (art. 10(1)).

How much can the company charge for damage?

Only the proven damage that exceeds contractual use, in the amount the company proves. Anything agreed in advance beyond that is void under OR art. 267(2).

Check how the figure was calculated: a calculation based on an odometer reading that does not match your car at return does not prove the extent of damage on your car.

This approach only helps when you did not cause the damage. If you did, the amount can still be checked: repair invoice against estimate, fees, VAT and loss of use.

There is no short limitation period like Germany’s six months: claims generally expire after ten years (OR art. 127), and a Betreibung interrupts limitation (art. 135(2)). The forfeiture under art. 267a does that work instead.

Fuel, cleaning, fines and other after-return charges

An extra charge is owed only if you agreed to it in the rental agreement or in validly incorporated terms that are not unfair under UWG art. 8.

• Prices: under the Price Display Ordinance (PBV arts 10, 11, 13) vehicle rental must show the actual price in Swiss francs and its unit. A fee neither in the displayed price nor in the signed agreement has no basis.
• Fuel: owed as agreed at the displayed price. Ask for the fuel readings at check-out and check-in.
• Cleaning: OR art. 259 puts only small cleaning for ordinary upkeep on the renter; more needs proof of the state at return.
• Traffic fines: under OBG art. 7 the keeper can name the driver, who then owes the fine. A handling fee needs a basis in the agreement and is limited by OR art. 267(2) and UWG art. 8.

The rental terms lookup shows the terms on file for Switzerland.

The company charged my card: what now?

Switzerland has no PSD2 and no statutory refund deadline for a disputed card debit; the dispute runs through your card issuer under the card scheme rules. The Stiftung für Konsumentenschutz advises checking your statement and contacting the issuer and the rental company at once.

With a Swiss issuer, the Swiss Banking Ombudsman is “a neutral and free of charge information and mediation office”, acting only after a written complaint to the bank. With an EU-issued card, use your issuer’s dispute route and the EU payment rules.

A Zahlungsbefehl arrived: how to object to a Betreibung

A Swiss creditor can start debt enforcement (Betreibung) without any court decision. The Betreibungsamt serves a payment order (Zahlungsbefehl) that demands payment within 20 days (SchKG arts 67 and 69). This does not mean a court has found that you owe the money.

To stop it, declare an objection (Rechtsvorschlag). SchKG art. 74(1): it is declared “sofort dem Überbringer des Zahlungsbefehls oder innert zehn Tagen nach der Zustellung dem Betreibungsamt mündlich oder schriftlich” (immediately to the person delivering the order, or within ten days of service to the enforcement office, orally or in writing).

1. File the Rechtsvorschlag within ten days, in writing.
2. Ask for the free certificate (art. 74(3)) and keep it.
3. The company must then bring its claim in a civil court (art. 79).

Provisional lifting of the objection requires a signed acknowledgement of debt (art. 82); a rental agreement that names no specific sum is not one.

If you live outside Switzerland, the company cannot pursue you through a Swiss Betreibung. It would have to sue at your domicile under ZPO art. 32(1)(b) and, if you live in the EU, under the Lugano Convention rules on consumer contracts.

Where can the company sue, and where can I get free help?

A company suing a consumer must do so at the consumer’s domicile (ZPO art. 32(1)(b)). A consumer can sue at the domicile or seat of either party.

• Conciliation first: a conciliation authority usually comes before court (art. 197). It can decide disputes up to CHF 2,000 on the claimant’s request (art. 212) and propose a decision up to CHF 10,000 (art. 210). No party compensation is awarded in conciliation (art. 113(1)).
• Simplified procedure: applies up to CHF 30,000 (art. 243(1)).
• Your data: under DSG art. 25 you can ask the company for the personal data it processes about you. Use it to obtain its photos and inspection records.
• Free advice: Stiftung für Konsumentenschutz, +41 31 370 24 24, info@konsumentenschutz.ch. Its rental car guide recommends a joint, written return and warns about key-drop returns.

What to do now

1. Note the date and time of return and the date the company first named the damage.
2. Collect your photos, the check-out form, the agreement and every email.
3. Ask in writing for the return report, the company’s photos and the repair invoice (ZGB art. 8, DSG art. 25).
4. Answer in writing, citing OR art. 267a for late notice and OR art. 267(2) for fees beyond actual damage.
5. If a Zahlungsbefehl arrives, file the Rechtsvorschlag within ten days.

The five-question self-check gives a quick first view, and the free Claim Check shows where your claim is weak and which deadlines matter. Other countries: damage claims overview.