Das pactum de non cedendo im System der Unabtretbarkeit von Forderungen

Overview & Synopsis

If a debtor and creditor agree that a claim may not be assigned (a so-called pactum de non cedendo), any assignment made in breach of this agreement is, under current Swiss law, generally considered invalid. Such clauses are common in contractual practice. They serve to protect the debtor from a potential deterioration of his position following an assignment. However, they also significantly hinder receivables-based corporate financing, which relies on the free transferability of claims. This study examines whether the Swiss legal framework governing the pactum de non cedendo remains appropriate in light of contemporary commercial needs. It analyses the interests of all parties affected by an assignment, situates the pactum within the broader system of restrictions on assignability, and compares the Swiss approach to that of foreign legal systems and international instruments. The study concludes with a concrete legislative reform proposal.