- The fact that the contracting parties are entrepreneurs does not preclude a contractual agreement from being deemed contrary to public policy. The less objectively justified the preferential treatment of one contracting party is, the more likely it is that a transaction between two entrepreneurs will be considered contrary to public policy.
- A long-term contractual relationship designed for six years (a consultancy agreement structured as a "contract for work"), in which the consultant owes neither a specific result nor a defined work effort, and which lacks any reciprocal obligation, can be contrary to public policy—especially given the stated purpose of securing the contractor's labor and expertise as comprehensively as possible. This is particularly true when, as in this case, an annual remuneration of €1 million is paid out at a time when investor lawsuits against the public limited company are already pending and the company is facing investor claims in the hundreds of millions in connection with Meinl European Land (later "Atrium").
- Note: This Supreme Court decision serves as a textbook example of scenarios in which contractual relationships—even between entrepreneurs—can be contrary to public policy.
- As early as 2009, the Supreme Court had classified the debtor's advertising for Meinl European Land certificates as misleading, and in 2010, it ruled that injured investors could challenge purchase agreements for such certificates concluded with the debtor (Meinl Bank) on the grounds of error (cf. 4 Ob 65/10b and many others).
- Since the consultancy agreement did not provide for any concretely definable performance obligation on the part of the defendant (Julius Meinl V.), the effort he claims to have subsequently provided cannot be understood as "agreed consideration" in the strict sense; from an ex-ante perspective, the contract is simply inequivalent and therefore contrary to public policy.
OGH 25.2.2026, 17 Ob 3/25b, WBl 2026, 261
