Unlike many countries which have been riddled with inflation, defaults, and political turmoil in the past, Switzerland has remained synonymous with stability. This has been one of the nation’s foremost values for many generations. For that reason, it’s one of the most reliable and popular places to issue credit. Fast-forward to the 2010s and 2020s, and the same tradition has been preserved when it comes to more sophisticated, efficient forms of loans like crowdlending.
In this context, capital is typically deployed as loans to businesses or projects. While these loans carry the expected risks of any credit investment, Switzerland’s legal system provides a robust layer of protection: loan claims are legally recognized as third-party assets and are excluded from a platform’s bankruptcy estate, per the Swiss Code of Obligations. This means that even in the unlikely event of a platform failure, investors retain legal rights to recover their principal and accrued interest.
Swiss law does not operate in isolation. Its protections are reinforced through regulatory oversight by FINMA along with membership in self-regulatory organizations, which impose strict operational, governance, and compliance requirements.
There are a number of laws in effect that enforce crowdlenders’ rights to reclaim their money in the event of a bankruptcy. One of the cornerstones of investor protection in Switzerland is the clear legal distinction between an organization’s own assets and the loan claims held on behalf of stakeholders.
Swiss Code of Obligations: Article 401 on Bankruptcy Entitlements
This article states that assets that a company holds for clients are explicitly excluded from its bankruptcy estate, supported by other important pieces of legislation as well like FISA and FMIA. This principle applies directly to crowdlending intermediaries: the loan claims issued to investors remain third-party assets, legally belonging to the stakeholders, even if the intermediary goes insolvent.
This means that the credit agreements between lenders and debtors are structured in such a way that the platform acts strictly as a facilitator. The organization makes the transaction possible, manages the repayment schedule, and oversees any necessary collection procedures, but never assumes ownership of the funds themselves.
Swiss Banking Act: Article 37d on Account Segregation
Custody assets held by banks or comparable financial institutions must be kept separate from the balance sheet of the institution, in line with the loss-allocation rules of Swiss insolvency law. In an insolvency scenario, these assets aren’t rendered part of the bankrupt estate and are shielded from claims by institutional creditors.
Financial Market Infrastructure Act: Article 73 on Evolving Market Infrastructures
This requires institutions managing securities on behalf of clients to segregate client holdings from their own assets and to offer lenders a choice between omnibus accounts and individually segregated accounts. While the operational form may differ, the legal outcome is the same.
Swiss Property Rights to Loans
The legal classification of loan claims is the foundation upon which investor protection in bankruptcy is built. Unlike models where outfits act as principals or temporarily warehouse loans on their own balance sheets, Swiss crowdlending platforms are structured as third parties. The credit claim itself is created directly between the lender and the borrower, with the platform facilitating the transaction but never becoming the legal owner of the claim.
Under Swiss civil law, a credit claim is an enforceable contractual right held by the creditor – in this case, the investor. This claim exists independently of the organization and remains valid regardless of the organization’s financial condition. The platform does not record these claims as assets on its own balance sheet.
What Happens If the Platform Disappears?
When evaluating lender protection in crowdlending, it is crucial to distinguish between platform risk and debtor risk. Market models address these risks in different ways. Until recently, across Europe, there have traditionally been two dominant protection models that predominated: regulatory compensation schemes under MiFID and contractual buyback guarantees.
Regulatory Compensation Schemes with MiFID
Under the MiFID/investor compensation scheme model, many organizations operate as licensed investment firms. If such a platform becomes insolvent or engages in misconduct, financiers may be compensated, typically up to EUR 20,000, for uninvested cash held with the organization. This mechanism is effective in addressing platform fraud or failure, but its scope is limited. Once funds are invested into credit, they are exposed to debtor performance. If a borrower defaults, MiFID compensation does not apply.
Moreover, in P2P and P2B lending, credit claims are operationally complex assets. Transferring and administering them after an organization’s disappearance can be slow and legally cumbersome, even when lender ownership is clear.
Buyback Guarantee Model
The buyback guarantee model approaches the problem differently by shifting risk off of the borrower and onto the credit originator. If repayments are delayed beyond a predefined period, the originator commits to repurchasing the loan. While this model appears simple and reassuring, it introduces a particular structural risk. The effectiveness of the protection depends entirely on the financial health of the originator.
Over time, defaulted loans accumulate on its balance sheet, and in stress scenarios, the buyback obligation itself grows unsustainable. If the originator or the organization fails simultaneously, the guarantee may prove useless.
The Solution: Two-Layer Protection by Maclear
The following structure is Maclear crowdlending platform’s solution to the aforementioned risks, designed to remain functional even if the organization itself ceases operations.
Provision Fund: This addresses liquidity risk rather than credit risk. It is designed to smooth temporary payment delays and technical disruptions by continuing interest payments to investors while issues are resolved at the debtor level. The fund is formed transparently from market-based fees: a commission paid by debtors and a secondary-market transaction fee paid by investors. These funds are ring-fenced for lender protection and are not part of Maclear’s operating revenue.
Hard collateral: as a collateral agent. If a debtor defaults and the Provision Fund is insufficient, Maclear initiates legal enforcement, realizes the pledged assets, and distributes the proceeds to lenders pro rata. Financiers do not need to pursue claims on their own; enforcement is centralized and contractually established.
Even in the event Maclear goes insolvent, lender funds and claims must be returned to their rightful owners and cannot be used to satisfy the platform creditors. Oversight by the self-regulatory organization PolyReg, operating under FINMA’s authority, adds a preventive compliance layer that supports this structure in practice.
Cross-Border Borrowers and Enforcement
Crowdlending organizations operating under Swiss law increasingly finance borrowers located outside Switzerland. While this introduces jurisdictional complexity, Swiss law is designed to preserve the enforceability of investor capital claims even in cross-border scenarios. The key principle remains unchanged: the capital claim is a private contractual right held by the capitalist, not the platform, and its legal existence does not depend on debtor location.
The legal nature of the claim, the lender’s creditor status, and the exclusion of the claim from a platform’s bankruptcy estate are all assessed under Swiss legal standards, even when the borrower is domiciled abroad.
Collateral Agent Service
This takes place where the borrower’s assets are located. In cross-border cases, Swiss judgments or enforceable instruments must be recognized and executed in the debtor’s jurisdiction. Switzerland’s strong network of bilateral treaties and its participation in international enforcement frameworks significantly reduce legal uncertainty in this process. Enforcement is on the shoulders of the platform, not the lender’s.
Stages of Financing in Crowdlending vs. Traditional Bank Loans
In the world of crowdlending, many platforms adopt a staged financing model, which is fundamentally different from the traditional bank lending structure. Rather than providing the full credit amount upfront, crowdlending loans are often disbursed in multiple stages, linked to the debtor achieving specific milestones or project objectives. This approach offers both lenders and borrowers greater flexibility and risk management. Thanks to secondary sales, lenders also get to exit projects early.
A crowdlending loan can be broken into several tranches or stages. Funds for each stage are released only after the debtor has successfully completed the previous phase and met pre-defined criteria. For example, a business seeking financing to expand operations might receive funding for initial equipment purchase first, then additional funds for staffing, and finally for marketing or distribution, as progress is verified.
Comparison with Traditional Bank Loans
Traditional bank loans typically provide the entire principal upfront with fixed monthly repayment obligations. This can create challenges for enterprises with uneven cash flows or project-based financing needs, as they must start repaying interest and principal immediately
By contrast, staged financing aligns capital deployment with actual project progress, reducing the risk of misallocation and over-leverage. Investors can monitor project performance at each stage, making more informed decisions, while borrowers only take on debt incrementally, easing repayment pressure.
Conclusion
Swiss law provides a uniquely secure environment for crowdlending, ensuring that investor loan claims are treated as third-party assets and remain protected even in the unlikely event of a platform’s bankruptcy. Coupled with structured enforcement for cross-border borrowers and the flexibility of staged financing, protections such as section 401 of the Code of Obligations, among others, make for a transparent, resilient framework both lenders and borrowers get to enjoy.
Beyond legal protection, Maclear’s AAA-to-D grading system, based on those of the 3 leading credit scoring agencies, helps evaluate borrower reliability, while collateral backing and the provision fund ensure that every investment has tangible asset coverage. Furthermore, investors contribute to socially significant public projects, combining financial returns with meaningful impact. Their risk is spread across multiple borrowers and projects, reducing concentration risk and promoting portfolio diversification.
