How certain can the seller of a property, house or condominium (hereinafter referred to as “purchase object” or “real estate”) be that the buyer will not subsequently assert claims against him and reduce the purchase price or attempt to rescind the contract? In some cases, buyers claim defects that violate verbally or conclusively guaranteed characteristics in order to result in a price reduction or even compensation. Often enough, however, contract provisions are also unclear, too general, or the parties to the contract attach different content to a liability provision.1
This article aims to provide an overview of the buyer's possible claims against the seller, the scope of waivers of warranty, liability and appeal, and the position of the author of the document.
In those cases in which the seller's warranty and liability cannot be excluded — for example if the seller is an entrepreneur and the buyer is a consumer within the meaning of the Consumer Protection Act2 or the seller home ownership organizer3 is, and this contribution does not address the obligations under the Energy Performance Certificate Submission Act 2012 (EAVG 2012).
The buyer's possible claims against the seller and disclaimers of liability are presented below.
Unless the parties agree otherwise, as is well known, the object of purchase must
have the characteristics usually required in fair trade or those expressly or conclusively specified; the purchased item must in particular be able to be used “in accordance with the nature of the transaction” or the “agreement reached in accordance with”4 or
comply with the information provided by the seller in public statements or advertising.5
If the object of purchase does not meet these ordinary, conditional or expected characteristics from the buyer's point of view in fair trade, the buyer is entitled to warranty. However, warranty claims do not exist if there are obvious defects that the seller has not maliciously concealed.6
If the purchase object is described in more detail in the purchase contract by mentioning negative features (“defects”) (e.g. humidity of the cellar; lift does not comply with the applicable regulations; parts of the house have external walls set), these “defects” are in accordance with the contract and do not represent a defect in the legal sense, but a (restrictive) “service description”.
What are the usually required characteristics of a property?
When buying a property — as with any purchase — the seller must give the buyer a basic burden-free property procure.
Monetary burdens In principle, the seller must pay off (“Debts and arrears”), even if they are shown in the land register.7 Among the terms “debts and arrears” used in law8 Are there also public law burdens, such as official orders to the seller to secure or repair an contaminated site under the Contaminated Sites Act9 or the Water Rights Act.10 However, the legal consequences of this provision do not apply if the official order is first given to the buyer of the property.11 Similarly, construction defects which were ordered to be remedied by the authority only after the sale of the property, even though the building defects existed even before the sale, cannot be regarded as “arrears” within the meaning of Section 928 sentence 2 of the Austrian Civil Code, as they are not equivalent to the obligation to correct them.12
Burdens other than monetary burdens can be seen from the land register — such as Servites and real loads — are considered to have been accepted by the buyer in case of doubt.13 If the seller expressly agrees that the property will be free of burdens, he will, however, also be liable for the removal of these “other charges” as shown in the land register.14 In the event of such a commitment, the seller must therefore also provide warranty for obvious defects.15 In the warranty statement of”completely sentence-free and burden-free transfer“The object of purchase includes the promise that servitutes will be free.16
In the event of an (express) commitment, warranty must also be provided for obvious servitutes17, unless it is a “legal service”, such as one in accordance with § 8 TWG (old) in favor of postal and telegraph administration: The contractual commitment of freedom of service does not include that of restrictions under public law.18
If an existing building is sold, the lack of official building permit19 and the lack of (possibility of obtaining) permission to use the building20 are fundamental legal deficiencies.
Furthermore: When selling a property with an older house built on it, it can be assumed, according to traffic opinion, that a irrevocable There is a building permit, in particular if, according to the current legal situation, a revocable building permit for the specific property would not be expected at all. A building permit issued merely against revocation at any time is therefore just as much a legal defect as the complete absence of a building permit.21
When selling a shell, the existence of the legally prescribed plot size — so that the use permit can be obtained without the purchase of neighboring land — is a usually required characteristic.22
If the seller has confirmed the existence of a legally binding building and use permit, this is a legal defect if renovation requirements set by the building authority have not been met by the seller (e.g. regarding the tightness of the fireplace following the smoke tightness test to be completed by the authority; sagging of the basement ceiling). Since a layperson cannot be accused of ignorance of building regulations, the state of a building without consensus or contrary to consensus is not an obvious legal defect.23
When buying “building land”, in addition to the zoning or admissibility of buildability,24 generally also uncontaminated soil, which enables it to be landfilled in the usual (cost-effective) way,25 usually required status; the same will also apply to the freedom of real estate from war relics.26 In addition, the size of the property specified in the contract negotiations, if it was decisive for the formation of the purchase price.27 In the case of a house or a condominium, this will also include the square meter of the living space. Static problems in the house too28 or defective moisture insulation29 contradict the usually required properties. In the case of a single-family house in a settlement, it may also be assumed that it was built on naturally grown land and not on a construction waste dump.30
When buying a condominium, attention must be paid not only to the purchased condominium itself, but also to the entire community complex:31 If, for example, there is damage to other apartments which must be repaired at the expense of the co-owners' association, each co-owner is entitled to repair such damage within the framework of
proper maintenance of the common parts and facilities of the property, and these costs (disadvantage = defect) also apply proportionally to the buyer of another apartment that is not affected.
It is not so easy to answer the question of which normal traffic characteristics can usually be assumed in fair business transactions when it comes to water, heating, air conditioning or electrical installations of the house/apartment or other technical equipment. Is it a new house/apartment, so the buyer can probably expect it to be as good as new.
Is the object of purchase considered as”completely renovated“touted32 Will it depend on the traffic perception which parts of the installations must have been renewed, and which the buyer leaves old installations or an old heating system33 must calculate. From the seller's point of view, it is recommended that the purchase contract be accompanied by a clarifying description of the extent to which the general refurbishment resulted in replacement for new equipment, installations or accessories or to what extent no exchange has taken place.
In the area of buying”used vehicles“It is judged that the buyer must accept defects within a certain framework even without waiving the warranty: The buyer does not buy a new car, but only a used car. He must therefore accept in particular the wear and tear defects corresponding to age and the kilometers traveled, if the usual condition of a used car does not preclude normal signs of wear and tear and the risk of even major repairs.34 However, even if there is an agreed exclusion of warranty based on the presentation of the object of purchase in pre-contractual negotiations or information provided, the traffic and operational safety of the used car can be conclusively assured, so that the seller is then responsible for the ability to drive35 or is liable for the traffic and operational safety of the motor vehicle.36 The normal signs of wear and tear that are expected per se must then not impair the traffic and operational safety of the purchased used car,37 Otherwise, a guarantee must be provided. The same applies to the sale of used aircraft38 judiciates.
The principles set out here will also apply to the purchase of a house/apartment that is a few years or decades old, so that defects and signs of aging, which are likely to be expected with a certain degree of probability based on the construction and/or age of a house/apartment, must certainly be accepted by the buyer.
I have already mentioned above that the characteristics of buildings that the buyer can expect include, in principle, the existence of a building permit and the use permit (and of course also that the building permit and its requirements were essentially retained when the building was constructed).39
If you go into detail, there are numerous other regulations that the previous owner, the seller, had to comply with and whose compliance the buyer could rely: for example, the soundproofing values of the windows contained in building regulations, the obligations for balustrades, railings or stair handrails, the prescribed fire resistance of the building materials used, the operational safety requirements for elevators, etc.40
For example, the case law has also stated that the house owner must constantly check the building safety and repair the buildings flawlessly in accordance with the results of the inspection and, in general, must comply with the minimum standard required for the physical safety of guests, applicable in accordance with relevant laws and other regulations, but also according to the current state of the art.41
In reality, however, things often look different: houses and apartments are sometimes not built in compliance with all relevant regulations. Often, the owner is also not aware of this fact and sometimes the owner also does not fulfill his obligation to check structural safety and repair and retrofit to the minimum standard corresponding to the current state of the art. This is especially true for elevators, heating and boiler systems, as well as water, electricity or gas pipes, which the owner — contrary to numerous state laws — does not have to be checked. There are also frequent deviations because tenants have carried out renovation work on their own authority (without the consent of the house owner and without building authority approval).
Here, too, the question is whether compliance with these provisions is covered by the seller's warranty obligation — at best also by an obligation to provide information — or not: It is questionable whether the protective purpose of these regulations is precisely to protect the buyer, who invests his money in real estate (in which the absence of this characteristic therefore has an effect on “mere assets”), or only to protect the specific residents/users, of neighbors or the general public and is therefore responsible for the question of warranty is irrelevant to the sales contract. These regulations are often aimed at operational safety, protecting the environment, neighbors, the general public or specific energy suppliers, but not at protecting the buyer of a property.42
There is only a legal defect if the seller does not provide the buyer with the legal position owed. According to a supreme court E, the existence of main rental agreements instead of sublease agreements between several owners is of decisive importance when selling an apartment building.43 It will also represent a defect if, for example, the rent lists handed over to the prospective buyer include rents that violate the MRG's rent formation regulations, e.g. exceed the permitted rent and the rents can therefore be partially recovered; this means a lower earning power of the house.
However, when selling a rental house, during contract negotiations, an interest list is handed over, in which individual apartments are shown as Category A, this does not necessarily represent the (conclusive) assurance that these apartments will still belong to the same category after provision by the main tenant.44
Unusual defects or burdens must not be concealed by the seller. Since warranty claims are independent of the seller's fault, the fact of concealment must be assessed purely objectively. Defects and burdens are unusual when they occur so rarely in normal traffic that they do not have to be expected. If the seller therefore conceals such defects and burdens, he must provide a guarantee, regardless of whether he knew them and whether he is subjectively responsible for concealing known defects or burdens.45
Rsp has affirmed an unusual defect in the event of special water restrictions on the use of a stream flowing over the purchased property.46 No unusual shortcoming was seen in the fact that the loan charge assumed with the residential property changes as a result of resale of the property.47
The seller must also provide warranty for characteristics of the object of purchase that are expressly or implied by the nature of the transaction; the same applies if he conceals unusual defects or burdens or falsely claims that the item is suitable for a specific use or has better characteristics than usual (Section 922 ABGB).
It is therefore entirely conceivable that the seller's warranty obligation also extends to characteristics of the object of purchase which, although not expressly agreed “in accordance with the nature of the transaction”: If the seller offers a plot of land as “building land” but this fact is not reflected in the written purchase contract or may even explicitly exclude “specific usability” by contract, he is still liable for the “owing to the nature of the transaction”
tacit characteristic “of buildability (which is usually expressed in a significantly higher purchase price than a price for “green land”): This is because a contractual warranty waiver does not extend to expressly or conclusively guaranteed properties or to fraudulently concealed defects.48
The seller's declaration “that there is a residential building under construction on the object of purchase”, provides an assurance that the shell is entirely on this plot of land — and not partly on the neighboring property — and that, upon completion, he can obtain the building authority's use permit without further ado.49
Conversely, however, negotiations prior to the conclusion of the contract may also result in that the parties of a Worse condition of the object of purchasehave gone out as it would normally be assumed in business transactions and thus reduced the warranty standard. This is even if this has not been reflected in the written purchase contract, but the contract must be interpreted in this way using the negotiations leading to the conclusion of the contract.
For example, the case law states: “Whether the object of purchase as an object of performance is contrary to contract or in accordance with the contract must be assessed on the basis of the specific sale agreement in its relevant interpretation.” Therefore, a contractual service description in the purchase contract, in which defects, negative properties or risks (e.g. lead water pipes, asbestos as a building material, is50 or suspicion of contamination51) are addressed, of great importance from the seller's point of view. The contracting parties may regard an item that is objectively defective as being in accordance with the contract and agree to it.52
According to the case law, for example, a strikingly low purchase price may be an indication that, according to the parties, certain negative characteristics of the object of purchase do not represent a defect and should therefore not trigger warranty claims.
Anyone who buys abandoned factory land cheaply, for example, is generally not allowed to complain that the soil is contaminated with used oil or other hazardous waste generated during the operation of the factory.53
For example, the (prospectus) documents and information about the residential property investment provided by the seller at the stage of contract initiation were considered to be conclusive property promises;54 the suitability of a warehouse (rented) (load-bearing capacity of the floor) explicitly for purposes of tile wholesalers and retailers to load shelves for tiles and sanitary ware.55 Of course, care should be taken when it comes to the question of whether the prospective buyer's notification of a purpose of use already becomes a guaranteed property if the seller does not object to this:56
In the event of failure to provide information that was legitimately expected in good faith — such as about the soil conditions known to the seller of a single-family house built on a construction waste landfill — the case law derives a conclusive property commitment (here: for normal soil conditions), which takes precedence over a general exclusion of warranty.57
Ultimately, Section 922 ABGB is a reasonable legal provision which is intended to prevent inadequate written contract provisions from leading to a contracting party being taken advantage of. Conversely, this is a gateway for asserting claims — usually by the buyer — and this burdens the execution of the contract with questions of evidence as to the content of the pre-contractual discussions and whether these could possibly be regarded as promises. Ultimately, this can only be clarified in court proceedings.
For “obvious” deficiencies — i.e. for deficiencies that”fall in the eye“— and for”the liability for the item, which can be seen from the public books“, according to the law, the seller has not to guarantee58 unless there is a case of fraudulent concealment of the defect or an express promise of freedom from errors (Section 928 sentence 1 ABGB).
However, the prerequisite for this legal exclusion of warranty is that the sold item has already been inspected before or at the time of conclusion of the contract, so that the defect has been submitted when the declaration of intent is submitted patently was. As a result of knowledge of the defect as such, warranty is excluded; knowledge of the cause of the defect is not necessary.59 In part, the case law regarded as an obvious defect not only those known at the time of conclusion of the contract, but also discernible Defects on.60 The knowledge of the person commissioned by the buyer to examine the purchased item is attributed to the buyer.61
Known Defects are therefore “obvious” if the seller discloses them to the buyer orally or in writing during contract discussions (in particular through a so-called disclosure letter).
Recognizable Defects are obvious in the sense of, in particular when the buyer undergoes a purchase check (due diligence — “DD”)62 or an inspection and inspection of the property, is made possible or the buyer receives documents for inspection showing the defect.
For medium and larger real estate transactions — whether as a purchase of the property or as a “share deal”63 — is it usual for the buyer to carefully examine the state of construction of the buildings, the legal, economic and, if applicable, environmental conditions, including the soil conditions, with the assistance of experts. The same applies to a company purchase of the associated properties.64
From a legal point of view, the rental situation (rental agreements and all contract documentation, rental income, interest lists, compliance with tenancy regulations, possible time limits of existing contracts, transfer rights, existence of entry rights, waivers of termination and creditworthiness of tenants, etc.), contractual relationships (housekeepers, facility management contracts, insurance contracts), purchase contracts (e.g. district heating; energy supply contracts) are examined. From a technical point of view, in addition to the construction status of the building and the individual parts of the building, the condition and documentation of the technical systems and control systems, the safety and fire alarm systems, the implementation of the prescribed inspections and much more are checked. In terms of building law, the existence of the building permit and the use permit, compliance with the zoning and development plan — possibly also the options for extension buildings — are checked. Depending on the situation of the case, the environmental audit examines the existence of contaminated sites or evidence of them. See the suspected land register in the Contaminated Sites Atlas, which is maintained by the Federal Environment Agency.65 This may include soil and groundwater samples. Checklists are available.66
As mentioned, the seller of an item is generally not responsible for obvious defects (except in cases of malice).
However, regardless of the obvious nature of a defect, the seller may
give an express or conclusive commitment to be completely free of defects or burdens, or
Just promise that the object of purchase is free from individual errors and exclude obvious defects from the promise of freedom from errors.67
If the seller expressly or conclusively makes a special commitment to be free from defects or burdens, this, as lex specialis, takes precedence over a general exclusion of warranty agreed in the purchase contract.68 On the one hand, the case law emphasizes that if freedom from defects is promised — even in the knowledge of an obvious defect — it cannot be said in general that the obvious (“eye-catching”) defect would have already had a price reduction anyway, so that there would be no guarantee for that reason alone.
However, the case law — correctly — allows it to be proven that the interpretation of the relevant contractual clause, taking into account the will of the party, may, however, mean that the manifest defect in question should be excluded from the promise of freedom from defects, which is formulated too broadly according to its wording.69 In this case, the contract wording — measured by the true will of the parties — (“natural consensus”) — is to be understood as restrictive, so that the seller is not responsible for the outstanding defect.
In part, the present question is resolved methodically in a different way: Although the contractual promise that the purchase object is free of defects is to be understood as a declaration of will and not simply as a declaration of knowledge, which is why the buyer's knowledge of the incorrectness of the promise would not harm the seller for a irrecoverable Not responsible for the defect if the acquirer is aware of it; in this case, the promise of freedom from errors would be an absurd part of the contract within the meaning of Section 878 and would therefore be invalid.70 If the seller reports an error, this excludes a warranty claim in this regard despite the general promise of freedom from defects.71 After Reischauer72 But should this only be done for irrecoverable Defects apply. In the event of correctable defects, the seller would be liable on the basis of an express commitment to freedom from defects.
ME is often used in cases where the buyer is aware of the defect or the defect is obvious to him — for example because the defect is revealed during a DD inspection made possible for him — despite an express commitment to be free of defects by means of a conclusive declaration of intent be exempted from the seller's warranty obligation or from the agreed balance sheet guarantee: Because it is entirely possible that the contracting parties have a constraint The pledge of freedom from defects, which is broad in its wording do it explicitly or conclusively, As the case law also acknowledges in this context.73 In addition, the acquirer in turn has obligations to provide information if he recognizes or it is obvious to him that the seller is in error when writing the overly broad warranty promise or that he incorrectly assesses the situation.
Although the clarification obligations for paid transactions, in which each party to the contract may be concerned with its advantage, must not be exceeded and each party to the contract must itself be aware of its own advantage,74 Here, mE must recognize the obligation to provide information, at least in a mitigated form, to the extent that the buyer may not derive any beneficial legal consequences for him — in this case: claim of the warranty commitment — from failure to explain the mistake made by the seller. It is therefore a general principle of law that no one may benefit from their own illegal conduct.75
Does the seller have the defect indebted76 — even if it was only by culpably failing to correct a defect before handing it over77 — the seller himself is also liable for the defect under the title of the compensation. In contrast to warranty, this presupposes the fault of the seller;78 slight negligence is sufficient.
This liability may result in a significantly longer liability on the part of the seller than in the case of a mere warranty, because the three-year limitation period for compensation is only with Knowledge the injured party (= buyer) starts running from the damage and from the person causing the damage.79
In addition, liability on the part of the seller for subsequent damage — i.e. damage resulting from the defectiveness of the purchased item as sequential damage — must also be considered. This liability is to be assessed in accordance with general compensation law;80 It also starts even in the event of slight negligence on the part of the seller.
Consequential damage may consist of damage caused by delays, the costs of a replacement apartment for the duration of the repair of the defects, or loss of operation for the duration of the removal of the contamination of the commercial building and can therefore take on considerable proportions.81
According to the case law, a contractual exclusion of warranty should not at the same time result in the exclusion of the seller's liability for subsequent damage caused by a defect.82 This is questionable to me, because by excluding warranty — from an economic point of view — the buyer approves the defective condition and then the subsequent damages lack illegality; however, as stated, the case law sees it differently.
Contractual exclusions of liability are also possible for subsequent damage — within the general limits of their admissibility (see H.3. below)83 and recommended from the seller's point of view.
It is also conceivable that the buyer initiated the purchase contract because of a contract initiated by the seller Business mistake challenges and demands rescission or contract adjustment, i.e. usually a reduction in the price.84
In case fraudulent misleading by the seller (or persons attributable to him, such as a broker85) does not only justify a business mistake, but also a Motivation to challenge.86
The following can be considered as misleading: active pretense of false facts;87 suppression of the true facts, leading to the buyer being misled or left in error;88 Omissions when there is an obligation to provide information and this is deliberately violated.89 However, cunning misleading is ruled out if the seller himself did not know the defect90 or the concealing contractual partner himself is not aware that the other party is wrong.91
Even without allegations of fraudulent misleading, the seller is liable for negligent breach of clarification obligations92 which obliges him — via the detour of compensation law — to pay damages; this ultimately reduces the purchase price previously received or results in the cancellation of the contract in return in kind.
However, with “turnover transactions” — i.e. also with sales contracts93 — each party to the contract to check the benefits of the contract for itself and cannot expect the other party to be “its curator”, so to speak.94 Whether the seller has an obligation to provide information depends on what characteristics the buyer of the object of purchase may expect on the basis of honest traffic opinion, after preliminary discussions, after the documents handed over to him or on the basis of an express or conclusive commitment.95
These expectations can therefore be changed by the conduct of the contracting parties before the contract is concluded:
If the seller provides additional information about the object of purchase or answers questions about it, he creates an expectation on the part of the prospective buyer that this information is correct; he is therefore liable in the event of its inaccuracy,96 as long as they are not just non-binding offers.
If the seller refuses to answer questions, his counterparty may not expect any additional information in this regard.97 Even anyone who is made aware of the absence of the expected circumstances according to fair traffic opinion before the contract is concluded does not need further clarification. In addition to explicit notifications/warnings from the seller, bringing in a liability or warranty exclusion can also draw the potential buyer's attention to impending risks and sources of danger: The “risk-based information value” of the proposed contract clause discloses possible negative features, so that the seller's obligation to provide information is ruled out.98
The case law has also stated that there is no general obligation on the part of the seller to put the buyer above all abstract dangers to enlighten.99 The seller must also
Do not instruct buyers if they do not name a specific purpose of the purchased item, but this would only identify a particular risk.100
The law101 allows the dispute of a contract due to shortening of more than half of the true value if — from the buyer's point of view — the purchased item is worth less than half of the agreed purchase price; from the seller's point of view, if the market value of the property is more than double the agreed purchase price. The relevant part of the contract is then “reduced by more than half” (“lesio enormis”).
In these cases, the law grants the abbreviated contractual partner the right to demand the cancellation of the contract and the previous situation restored. However, the other party to the contract can maintain the purchase transaction by reimbursing the difference up to the common value (market value) of the purchased item.
On the contractual exclusion of lesio enormis s below H.4.
A purchase contract may be void as a whole due to immorality, in particular due to usury or gross value inequivalence.102
Individual contract clauses may also be immoral.103 As a result, they must be limited to their allowable content by maintaining their validity104 or that they are completely omitted.105
Further information would be beyond the scope of this article, so reference should be made to the relevant Lit and Rsp.
A full or partial exclusion (waiver) of warranty by the buyer is generally permitted in accordance with Section 929 ABGB.106 A comprehensive warranty waiver generally also covers secret defects107 and such defects, which usually relate to assumed characteristics,108 But not due to the lack of guaranteed features.109 The scope of a warranty waiver must be determined by interpretation in individual cases (Section 914 ABGB) in accordance with the intent of the parties and their practice of fair dealings.110 In principle, material and legal defects are equally covered by the warranty waiver.111 A part of recent teaching112 and Rsp113 assumes, however, that a waiver of legal defects would be immoral and limits the waiver of material defects in case of doubt.
According to StrSP, contractual warranty exclusions (waivers) must be interpreted restrictively in case of doubt.114 A contractual exclusion of warranty therefore does not extend to the absence of expressly or conclusively guaranteed features or to fraudulently concealed defects.115 A waiver of warranty may occur in the event of malice116 — or gross negligence — on the part of the seller and in the event of immoral offense.117
Conclusive promises of certain characteristics or only obtained through contract interpretation therefore take precedence over the general (unspecified) warranty exclusion as a more specific commitment.118
Rsp often interprets all circumstances and the text of the contract very sensitively conclusive warranty statements for basic characteristics of the object of purchase , which then proceed with a warranty exclusion.119 A contractual exclusion of warranty also does not include the complete unusability of the purchased item.120
A warranty waiver must be interpreted restrictively and, according to the Rsp, should only include a waiver of assertion of the defect, but not a waiver of the subsequent damage caused by the defect.121
Does the sales contract include a”Visitation clause“— something like that”that the buyer had the opportunity to obtain information by viewing“— does this relate only to defects that were apparent to the buyer through inspection and collection of information,122 Therefore not for secret deficiencies.123
In the former Rsp124 The clause that the seller “does not guarantee certain properties and a specific condition” of the property was also regarded as a warranty disclaimer for above-average contamination, which required remediation at a cost of 5.3 times the purchase price, although none of the contracting parties was aware of contamination to this extent, but only “certain soil contamination” was to be expected.125 In the subsequent decision v 25.1.2000126 It was stated that the freedom of a property from massive contamination, the existence of which, as a result of the intervention of the environmental authority, prevents the buyer from carrying out construction for years, is generally one of the usually required characteristics of a property purchased for the purpose of building a house. According to its wording, the exclusion of warranty “for certain characteristics or a specific nature of the object of purchase” does not simply relate to the identified defect of this contamination, which prevented the usually assumed usability.
The term used in sales contracts”Contamination“was given a different scope in several decisions: In one decision128 In language usage, “contamination” was generally understood as mixing the soil with undesirable substances, in particular “polluting, polluting.” Against the background of a contract provision relating to “contamination of any kind,” Rsp also assessed Construction waste, This means that materials already in the ground have entered the soil after earlier demolition of buildings (parts), as “contaminations”. In this decision, the Supreme Court referred to the Rsp of the VwGH, according to which landfills with construction waste are to be assessed as an inadmissible “deposit” that is only permitted in a construction waste landfill because the dumping of construction waste entails risks for environmentally relevant goods. Soil interspersed with construction waste should therefore also be described as contaminated because of this condition and represents a potential environmental hazard, at least in the case of disposal.
In another decision129 The Supreme Court stated that the term “contamination” can be very broad. In the specific case, however, it would be clear from the preliminary talks between the parties that this only meant the contamination from a previous filling station, not also remnants of building materials from a garage system.
In a follow-up decision130 The Supreme Court defined the concept of contaminations To the point that he only such with substances hazardous to health and/or the environment comprises, but not, building remains, which consisted mainly of broken bricks.
In the latest decision131 Was a (conceptually unsuccessful) definition in the purchase contract to be assessed, according to which the seller had committed himself toto be liable for contaminated liabilities within the meaning of Sections 24 and 25 of the Upper Austrian Soil Protection Act”. The term had an accident because the Upper Austrian Soil Protection Act does not know the term “contaminated site”. Here, this liability commitment on the part of the seller was broadly understood, as the contract negotiations asked whether there had previously been a company or workshop near the property or whether the materials obtained in the dental practice (the object of purchase) were properly disposed of and whether something could have been buried or piled up on the property; it should therefore have been clear to the seller that he was thus providing a comprehensive contractual assurance and assumed warranty liability. That the
Pillage with construction waste was not known, did not change his warranty liability.
For contract practice, it is therefore advisable — particularly in view of the fact that preliminary discussions, the course of contract negotiations and the interests of the parties must also be included in the interpretation of the liability clause/exclusion/assurance — that great care be taken when drafting contamination clauses. From the buyer's point of view, the concept of contamination should be clarified to include contamination with substances that are not hazardous to health and/or the environment, in particular those whose landfilling costs higher than unpolluted soil.
Does the sales contract contain an exclusion of Seller's liability for”a specific nature or a specific usability of the property“, This disclaimer therefore also includes soil contamination with not substances hazardous to health and/or the environment.132
According to common parlance, aerial bombs (duds) do not fall under the term “contamination.”133
The clause that is often found in practice, according to which the purchased item “is sold as the seller owned and used them or was entitled to own and use them.“does not mean an effective disclaimer of warranty.134
The lack of official permission to use is not covered by the disclaimer of warranty contained in the purchase contract for”Construction defects”.135 The same applies to unmet renovation requirements imposed by the building authority as a legal defect.
The interpretation of a contractual warranty disclaimer for specifically identified material defects It is usually revealed that this also waives the right of appeal due to an innocently caused error of property.136
In other cases, remedies for error can generally be asserted in addition to warranty claims.137
In contract practice, mediating arrangements are sometimes made to bridge the differences of opinion between seller and buyer: These may consist, for example, in the fact that the buyer can only assert warranty claims to the extent that they exceed a certain minimum amount. At the same time, a maximum limit can also be withdrawn. Sometimes, it is also agreed that the costs of remedying the defect will be shared between seller and buyer in accordance with a contractually defined key. At the same time, the topic “new for old138“be resolved by such a sharing agreement.
In the purchase contract, the parties to the contract may effectively refrain from challenging or adjusting a contract due to error in advance.139 However, if the error was caused by gross negligence, an appeal to the contractually agreed waiver in advance is immoral, in particular if the errant himself was unable to adequately verify the circumstances relevant to the error in good time.140
As already mentioned, warranty and error dispute claims can co-exist, so a mere exclusion of warranty alone would not preclude the right to challenge or adjust the contract due to error. However, in individual cases, the interpretation of the contract may result in the exclusion of warranty for a particular circumstance also includes a waiver of the error challenge for that circumstance, in particular when it is a simple error of property (except that the relevant circumstance would have been expressly assured).
In Lit, the contract clause, according to which the parties”any liability“exclude, interpret in such a way that contestation of errors is then also excluded.141
In order to challenge the contract due to malice In principle, cannot be dispensed with.142
Contractual exclusions of liability for indebted damage — in this case: damage caused by defects and subsequent damage to the object of purchase or in “mere assets” as well as from the breach of clarification obligations — are generally permitted143 insofar as they are not immoral in individual cases.144
Liability for intentional damage can never be waived. According to Rsp, liability exemption can only be effective for damage arising from risks typical of the legal relationship or foreseeable, at least in individual cases, under its particular circumstances.145 Claims which the parties could not think of at all, whether that the damage was caused by an unforeseeable source of risk, or that the damage was based on such gross fault that it must be said that such conduct could not be expected based on life's experiences146,147, are not covered by a liability disclaimer.
It is questionable whether an exclusion of liability is permitted in the event of gross negligence or not; in the case of gross negligence, contractual liability exclusions are regarded as ineffective.148 However, an exclusion of liability for personal injury is not effective even in the event of slight negligence.149
Since the trade law reform, the right to challenge contracts due to shortening more than half of the true value also applies to transactions between entrepreneurs. However, entrepreneurs can easily waive the challenge due to shortening more than half of the true value by contract150.151.
In between Non-entrepreneurs Can the lesio enormis only be excluded by contract if a party to the purchase item out of particular preference deliberately overpaid,152 by declaring that he would take over the matter “out of particular preference for an extraordinarily high price” or “if, although the true value was known to him, he still understood the disproportionate value”; or if it is presumed from the relationship between the parties to the contract that they have a mixed (i.e. paid and gratuitous) treaty wanted to close, or when the actual value can no longer be determined.153
Contestation of the contract due to lesio enormis is only possible in the event of an error of value. Contestation is excluded if the abbreviated person knows the true value of the item.154 If there are mere doubts about the value of the thing, this is not the case:155
From the buyer's mere declaration in the purchase contract that he knew the true value of the purchased item and therefore waived the challenge due to shortening of more than half, it cannot easily be concluded that the buyer actually knew the true value.156 The other party to the contract is required to prove that the abbreviated person knew the true value.157
According to the Rsp, if the purchased item is defective, the value ratio is not based on the value of the defect-free item in relation to the agreed purchase price, but on the value of the defective item.158
If the parties have contractually ruled out the challenge due to shortening of more than half, the challenge is also inadmissible from the point of view of a joint error about the value of the object of purchase and thus about the appropriateness of the price.159
The generally three-year limitation period for warranty claims when buying a property can be reduced or extended by means of a contractual agreement.160
The warranty period begins on the date of delivery of the purchased item, but in the case of legal defects only on the day on which the buyer becomes aware of the defect.
An excessive shortening of the warranty period, as well as an exclusion of warranty, may be immoral depending on the case, or the seller may be prevented “in good faith” from invoking the expiry of the warranty period.161
The limitation period for contesting or adjusting the contract due to error and for compensation claims162 can only be contractually shortened, not extended, in accordance with general principles.163 However, if the other contractual partner has maliciously brought about the limitation period, the statute of limitations may be countered with a replica of malice.164
The three-year limitation period for contesting the contract due to shortening by more than half is between undertakings abbreviated, but cannot be shortened for private individuals who are involved in the contract.
If the seller wants to reduce or exclude his liability as far as possible, he must therefore be careful that
that he (and also a broker commissioned by him) gives the buyer correct information about the object of purchase,165 and presents the energy certificate — where required by law;
that he discloses all negative features (defects) so that the buyer cannot rely on the purchase object being free of defects,
if there are “defects” or adverse features, that the purchase contract includes a corresponding description of the object of purchase that limits the buyer's expectations;166
that, in the pre-contractual negotiation stage, the buyer undertakes to expertly examine or have the object of purchase inspected (“due diligence review”) and that the seller enables the buyer to carry out such an audit,
that the seller avoids making express or conclusive assurances to the buyer about the characteristics of the object of purchase and agreement is reached that promises are only effective if they are agreed in writing (“reservation of written form”) and that oral and implied promises are waived.
In combination with a contractually agreed exclusion of warranty, liability and contestation, with express assumption of the risk of defects that may remain undetected or secret by the buyer, his liability can then be minimized.
Nevertheless, a “viewing clause” does not completely exclude warranty. According to the Rsp, general or extensive warranty exclusions (waivers) must also be interpreted restrictively in case of doubt. In order to achieve contract security, the disclosure of defects should be made not only orally, but verifiably, i.e. in writing, for example in the purchase contract document itself.
If and to the extent that lawyers and notaries act for both contractual partners in drawing up and processing contracts167, — i.e. are “joint contract authors” — hereinafter referred to as “contract authors” for short — they must represent the interests of both parties, even if they are otherwise only the agents of a contractual partner. Anyone taking on such a transaction is therefore also entering into an obligation vis-à-vis the partners of that part of the contract that expressly requests or makes use of its services: because through his conduct, he gives the impression and confidence that, when carrying out the transaction, he will be careful to protect both parties of the contract from disadvantages and to ensure their legal security. The lawyer or notary acting as contract installer therefore has obligations to provide information and clarification vis-à-vis all contract partners.168 The contracting notary must provide the contracting parties with full legal information and also inform them of the economic effects of the contract and any adverse consequences.169
Only if the parties have irrevocably agreed on the terms of the contract, so that the author of the document only has to bring the content of the contract into the appropriate legal form and set it down in writing, is the author of the document not liable for failure to provide information on the drafting of the contract, because it is not his task to work on an amendment to the concluded contract.170
The contract-creating notary is obliged to provide information and clarification to a party represented by a lawyer about the legal significance and economic effects of the proposed contract provisions only if there are special circumstances. However, this does not apply in cases in which the notary not only drafts the contract but also carries out the purchase contract for a property in trust, including the settlement.171
The extent of the contract author's obligation to provide information and information depends on the circumstances of the individual case. Although, in a specific case, the liability of a contract author who had not clarified the soil conditions of the purchase property was denied,172 Can this not be generalized: Because the author of the contract must clarify the circumstances relevant to the drafting of the contract — i.e. primarily to be informed by the parties that he may carry out his own surveys in the land register or other publicly available books in order to obtain a sufficient information base for an appropriate drafting of the contract. In particular, if one party to the contract wishes warranty restrictions or exclusions of liability, the author of the contract must inform the other party of the disadvantages or risks associated with this: In accordance with his obligation to provide information — see above — the author of the contract must protect the parties from disadvantages and inform them of the economic effects of the contract and any adverse consequences. In order to bring about a reconciliation of interests here and not to suggest or recommend disadvantages to a party that cannot be understood by a liability waiver, the contract author will often have to suggest the involvement of experts and the conduct of a due diligence review so that the party concerned can quantify the risks and assess the effects of a liability waiver and thus decide competently whether to agree to the contract drafting desired by the contractual partner.
About the author:
Attorney Univ.-Prof. Dr. Johannes Reich-Rohrwig is a partner at CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH, Vienna, and teaches corporate and corporate law at the Juridicum of the University of Vienna.
