Swiss Founders Before Incorporation: Put the Interim Deal in Writing

Two people can start building a Swiss business before they register a company. But “we will incorporate later” does not answer who owns code, who can bind the project, who pays the first invoice, or who bears a loss if the company never forms. Under Swiss law, an informal arrangement may amount to a contract, and the facts can potentially create a simple partnership even when the founders did not intend to choose that form.

The Federal Department of Economic Affairs’ SME portal explains that a simple partnership is a contractual association of two or more people combining efforts or resources for a common purpose under Articles 530–551 of the Swiss Code of Obligations (CO). It says the form does not require special formalities and may arise without the participants realizing it. It has no legal personality; the portal warns that partners can be jointly and severally and without limit liable externally for its obligations, unless a partner clearly acts in their own name. See the official Simple partnership overview.

That does not mean every startup conversation or prototype creates a partnership. Whether an agreement exists, who the parties are and what terms they accepted depend on the evidence and conduct. It does mean founders should stop treating the period before incorporation as legally blank. A short, signed interim agreement can make the current arrangement and the planned transition visible while counsel helps select the correct legal form.

Start with a “who did what in whose name?” inventory

Before drafting, collect the record. Identify every founder and collaborator, when they joined, what they promised, what they contributed and which commitments were made to outsiders. Preserve email, chat, pitch decks, code repositories, purchase orders, vendor terms, payment records, domain registrations, draft contracts and incorporation documents. Record which person signed each commitment and whether it used an individual name, a proposed company name, or “company in formation” wording.

The question is not only whether a file is called a founders’ agreement. A sequence of offers, acceptances and actions may matter. A proposal can remain a draft; an email can reflect an accepted term; a person can commit to a vendor without authority from the other founders; and subsequent conduct may change what the participants agreed. Keep these possibilities separate instead of assuming every conversation is binding or none of it is.

Do not modify original records while building the inventory. Make a separate chronology and link each point to a source document. If you later negotiate a clarification, label it with the actual date signed; do not backdate it to make the interim record look cleaner.

Put the interim agreement in writing

The SME portal recommends a written contract that covers management, allocation of work and competencies, contributions, and distribution of profits and losses. For a technology venture, add intellectual property and data handling. Keep the agreement proportionate: a short document that answers the real open questions is more useful than a long template that silently imports an unrelated jurisdiction’s terms.

At minimum, identify:

1. Parties and purpose. Name the individuals and describe the limited project or business they are pursuing. State whether an entity exists yet; do not describe an unregistered group as if it were already a limited-liability company.
2. Contributions and expenses. Specify cash, services, equipment and reimbursable costs. Say whether a payment is a loan, advance, expense contribution or capital intended for a future company. Set approval limits and keep receipts.
3. Roles and authority. Allocate development, sales, administration and vendor management. State who may sign an order, hire a contractor, access a bank account or make a public commitment. A private authority limit may not automatically bind an outsider that was not informed of it.
4. Ownership and licences. List each person’s pre-existing code, designs, datasets, inventions, brands and tools. Define what is contributed or licensed for the project, what remains separate, who can use it, and what happens if incorporation fails. Avoid saying “all IP is owned by the future company” without an effective assignment or transfer mechanism.
5. Project-created materials. State how new work is owned or licensed while the venture is unincorporated and what assignment or licence the incorporated entity will receive. Identify third-party and open-source material, and make sure the arrangement does not purport to transfer rights a founder does not own.
6. Confidentiality and data. Define confidential information carefully, permitted use, security, access, return/deletion and lawful retention. Personal data and regulated information need separate compliance analysis; a founder agreement does not itself satisfy every privacy obligation.
7. Revenue, loss and tax. State how income is collected and accounted for, how a deficit is funded and how tax and social-insurance questions will be handled. Do not assume equal sharing or no personal tax consequences without advice.
8. Decision-making and deadlock. Identify matters requiring unanimous consent, routine decisions that can be made by a role owner, a response process and a practical path to resolve a deadlock.
9. Exit and dissolution. Address notice, unfinished work, customer commitments, expense reconciliation, project assets, repository access, client handover and whether a founder can continue independently. State what happens if the company is not formed by a defined date or milestone.
10. Future incorporation. Describe which terms are intended to continue, which require company approval or transfer, and who will arrange the formal steps. Do not represent that the new company is already bound by a pre-incorporation contract.

Distinguish an interim simple partnership from the future company

The future legal form changes the risk picture. The Swiss SME portal says a simple partnership has no legal personality and cannot act as a separate corporate person. By contrast, a Swiss limited liability company (GmbH/Sàrl) is established through required formal steps and entry in the commercial register; the official portal describes its separate legal personality and formation requirements in its LLC overview. Do not tell vendors that a company exists or has limited liability before it actually does.

The official company-registration guidance notes that operations can be carried out on behalf of a company being set up before register entry, but if registration does not occur, the arrangement can be treated as an ordinary company, with partners answerable for rights and obligations. The specific rule, legal form and documents matter. This is a strong reason to have a Swiss professional review any contract signed during formation, including who becomes liable and how the later entity assumes it.

Formality requirements differ by company type and transaction. For example, a GmbH’s formation involves notarized steps and commercial-register entry. A simple partnership, by contrast, does not require a special form according to the SME portal. Never generalize the simple-partnership rule to formation of a capital company, a transfer of particular assets or a transaction that has its own form requirement.

What happens if one founder wants out?

The Code of Obligations (CO) arts. 545–546 supplies important default dissolution rules for a simple partnership. Article 545 lists dissolution grounds, including achievement or impossibility of the purpose, mutual agreement, expiry of an agreed term, a partner’s notice where notice is reserved or the partnership is indefinite/lifetime, and a court order for important cause. Article 545(2) allows dissolution for important cause before an agreed term ends, or without prior notice where the partnership is indefinite. For a partnership of indefinite duration or for a partner’s lifetime, Article 546 allows any partner to give six months’ notice; notice must be given in good faith and not at an inopportune time, and if annual accounts are agreed it may be given only for the end of a business year. Do not assume an informal “I’m leaving” message immediately dissolves the arrangement. Check the agreement, term, notice timing, other partners’ responses and whether important cause is being asserted with Swiss counsel.

Dissolution does not by itself settle project assets or erase outside debts. Article 544(3) addresses partners’ joint and several liability for obligations incurred in the partnership’s name or on its behalf, subject to the statutory conditions; an internal agreement about who should pay does not necessarily bind a vendor or other third party. Partners should preserve a closing ledger and negotiate the settlement of contributions, assets, receivables and liabilities under the applicable CO rules, including the statutory liquidation provisions in Articles 548 onward. Identify which person signed each customer, contractor, cloud or supplier commitment and obtain advice before promising that a departing founder has no further exposure.

Intellectual property needs its own schedule

Founders often focus on shares and neglect the code, brand and work product that make the business valuable. Create an asset schedule before the first investor or customer diligence exercise. For every item, record creator, creation date, owner, repository or storage location, third-party components, existing licence and any planned contribution to the venture.

Separate background materials from new project work. A founder may own a library built before the idea, while the project uses a licence to it. A contractor may own code unless an effective written assignment or other applicable rule transfers it. A logo may be created by an external designer under a proposal that only grants a narrow use. A dataset might carry privacy, copyright or contractual restrictions. The founders’ agreement should not state that the group owns all materials merely because they were uploaded into a shared folder.

The agreement should identify what the future company will receive and how transfer happens: signed assignment, licence, employee/contractor agreement, deed or other instrument as appropriate. Include warranties only to the extent each founder can truthfully make them. Keep signed forms and repository evidence together, and obtain local advice on authorship, patents, trademarks, open-source obligations and moral rights as relevant.

Example: the company never registers

Suppose Amina and Luca agree by email to build a scheduling product. Amina writes the core code from a pre-existing framework; Luca pays a designer and orders a cloud account in the name “Alpine Schedule GmbH,” although that company has not been incorporated. They split prospective revenue “equally” but never agree what expenses mean or who may sign vendor contracts. After six months, they disagree, and the incorporation appointment is cancelled.

Their questions are not answered merely by checking whether a signed founders’ agreement exists. The emails, work, payments, representations to the designer and cloud vendor, and use of a proposed company name all need review. They should identify which commitments were entered personally, what rights Amina granted in the framework and new code, whether the designer’s contract assigned the logo, who owns the domain and data, and how unpaid expenses should be allocated. The formation process and possible simple-partnership rules need Swiss advice. This hypothetical does not determine whether a partnership formed or how a court would allocate assets.

If they had written an interim agreement at the start, it could have identified Amina’s background framework, defined a project-use licence, capped vendor spending, recorded who contracts in their own name, set a dissolution process and required a separate transfer package if a company formed. It would not erase obligations already owed to third parties, guarantee limited liability, or replace the formal acts required for incorporation.

Review external commitments and clean up the transition

Make a list of every customer, supplier, contractor, cloud provider, landlord, bank and public authority contacted for the project. For each one, record the contracting name, signatory, authority, payment status, renewal/cancellation terms, data stored, and whether the future company can take over. Contact the counterparty if the contracting identity was unclear; do not alter a contract and assume the other side agreed.

At incorporation, prepare a transfer or assumption checklist with counsel: assets and IP, licences, domains, customer and supplier contracts, debts and advances, data-controller responsibilities, employment and contractor arrangements, bank and tax accounts, insurance, records and access. The founders should also check which interim terms end, which remain between founders and which the company must separately adopt. If no company is formed, document who owns each project asset, who can continue using it and how third-party obligations will be paid.

Common mistakes

• Assuming that no company registration means no contract or liability.
• Using a proposed company name as though it already has legal personality.
• Treating every email as binding or every email as irrelevant without reading the full record.
• Forgetting that a simple partnership may arise from conduct and does not require special form.
• Assuming limited-liability protections apply before the relevant company is formed.
• Calling founder time “equity” without defining what that means or how it is recorded.
• Assigning all code to a future company without identifying current owners and an effective transfer.
• Ignoring vendor contracts, personal guarantees, cloud subscriptions and outstanding expenses.
• Relying on equal ownership as a complete rule for decisions, profits, losses and exits.
• Backdating a later clarification or silently editing the original messages and agreements.
• Copying a foreign startup form without checking Swiss company and partnership law.

Pre-incorporation checklist

1. Identify all founders, contributors and the actual contracting parties.
2. Build a dated evidence inventory of messages, code, work, payments and external commitments.
3. Confirm whether the project may fit a Swiss simple partnership or another form.
4. Put the purpose, roles, authority, contributions, expense caps and loss allocation in writing.
5. Schedule background IP, project work, licences, third-party materials and planned transfers.
6. Document confidentiality, data access, security, retention and exit handling.
7. Decide how income, records, tax and social-insurance questions will be managed.
8. Add decision rights, deadlock steps, founder departure and dissolution provisions.
9. Review every contract signed in the proposed company’s name before formation.
10. Ask Swiss counsel which legal form and formal steps are appropriate.
11. At formation, separately transfer or assume contracts, assets, IP and obligations.
12. If the company is not formed, reconcile ownership, expenses, access and third-party debts.

Questions about founders’ agreements before incorporation

Is an email agreement binding in Switzerland?

It may be evidence of agreement, but whether a contract formed and on which terms depends on the communication, acceptance, context, conduct and any legal form requirement. Keep the full thread and have counsel assess the specific issue.

Can a simple partnership form without paperwork?

The Swiss SME portal says a simple partnership does not require special formalities and may arise without participants realizing it. It still requires the legal elements of the arrangement; startup activity alone does not let a reader determine the result without facts.

Are founders personally responsible for vendor bills before incorporation?

Responsibility depends on who contracted, the legal form and the circumstances. The SME portal warns simple-partnership partners can be jointly and severally and without limit liable externally. Review each purchase order, signature and representation rather than assuming the future company owes it.

Does a founder agreement give the future company ownership of code?

Not automatically. Identify the current owner and use an effective assignment or licence mechanism. The future company may need to accept or receive rights through separate documents, and third-party/open-source terms remain relevant.

What if one founder withdraws before incorporation?

Check the interim agreement, whether the partnership is for a fixed or indefinite term, CO Articles 545–546 notice/dissolution rules, external contracts, contributions, IP rights and outstanding costs. For an indefinite arrangement, the statutory default includes six months’ notice in good faith and not at an inopportune time, with a year-end rule if annual accounts are agreed; important cause can support a request for earlier dissolution. Agree a written exit, account reconciliation and asset handover if possible. Dissolution does not erase obligations to third parties or settle ownership automatically; obtain Swiss advice on the effective date and winding-up.

Can we split expenses and profits 50/50 by default?

Do not rely on an assumed default without reviewing the applicable CO provisions and facts. State the intended method for contributions, advances, reimbursement, revenue, profits and losses, and obtain advice on how it applies to the chosen form.

Can the founders agree that nobody is liable until registration?

An agreement between founders may allocate responsibility internally, but it does not necessarily prevent an outsider from asserting rights against the person who contracted or the relevant partnership. Have counsel review both the internal agreement and external documents.

Should an interim agreement include a non-compete?

Not automatically. Define confidentiality, IP, customer solicitation and competition separately. A post-exit non-compete can raise distinct enforceability questions under Swiss law; see the Swiss non-compete guide and obtain advice before using a restriction.

For a related issue on a creditor’s documents, see the Swiss debt-enforcement evidence guide. Teams can also use Gotham’s contract consistency checklist to organize defined terms and cross-references, and the Swiss e-filing guide for transmission records. Explore Gotham workflows or contact the team for document workflow questions; these resources do not replace Swiss legal advice.

Questions about Swiss founder agreements

Can Swiss founders have a binding agreement before incorporating?

Potentially. Swiss law generally recognizes contracts without a special form unless a law requires one, and conduct can evidence an arrangement. The parties, terms and authority must be established from the facts.

Can an unregistered startup be treated as a simple partnership?

It can arise when two or more people contract to combine efforts or resources for a common purpose and no other company form applies. Switzerland’s SME portal warns that founders may create one without realizing it.

Are founders personally liable before a company is registered?

A simple partnership has no legal personality; the Swiss SME portal says partners are externally jointly and severally and without limit liable for partnership obligations, subject to the facts and whether a person clearly acted in their own name.

Does a pre-incorporation agreement automatically become the company’s agreement?

No. Identify who made each commitment and whether the later company validly assumes, replaces or ratifies it. Formation and transfer steps may have formal requirements.

Should founders include a non-compete clause?

Do not add a blanket restriction without assessing scope and enforceability. Separate confidentiality, IP ownership, client solicitation and competition, and obtain Swiss advice on any proposed post-exit restriction.

This article is general information about Swiss pre-incorporation arrangements, not legal advice. Formation, tax, employment, regulated activity, securities and cross-border issues depend on facts. Official German, French or Italian law controls over translations.
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