absolutely. Good faith is not only an explicit obligation under the mandate contract (Article 394ff SCO, which applies to most transactions between a financial services provider and his client), but also a general principle of Swiss law (Article 2 BGB). In accordance with Article 2 of the Penal Code, everyone must act in good faith in their relationship. The main task of the agent in the framework of the mandate agreement is to act in the best interests of the client. Under this obligation, the agent also owes his principal the obligation of loyalty, which implies the obligation to act in good faith. Typical allegations, which would relate to a breach of good faith, would be based on offences related to the duty of information or duty of care of the officer, or both. The loyalty obligation would also be at stake, particularly when the supplier was selling its own products to customers or products that could have been issued by a third party but to which the supplier has a particular interest (for example). B retrocession). In recent years, the Bundesgerichtshof has confirmed, in the development of its jurisprudence, that such a duty of allegiance was included in the mandate agreement (agency) and that it had proved quite strict in its application. One of the key steps in this evolution was the recognition that the receipt of any retroactive effects by the service provider was due to the client and was therefore explicitly disclosed and agreed upon by the client. In the absence of such client consent, the service provider breached its fiduciary duties to its client and all received transfers are due to the client. Contractual freedom is a principle generally tested by Swiss law.
The main limit of this freedom lies in the simple excessive obligation of Article 27 of the Penal Code. However, in practice, this issue is irrelevant in the financial services sector. The same goes for punitive clauses. These clauses are subject to specific requirements of Swiss law, but are rarely used in contracts between financial institutions and clients (except possibly in credit or mortgage contracts, for which the penalty would normally correspond to the damage suffered by the financial institution in the event of prior termination). The loyalty services of an individual or a company in Switzerland can be defined as management and protection services for a client`s real estate or money. Trust services can also be defined as fiduciary services in Switzerland. The obligations of the agents consist in the protection of the clients` assets and all their actions are carried out in the interests of the beneficiary.