Austrian OGH on Warranty and the Right of Retention

Feb 14, 2025 Benn-Ibler Rechtsanwälte

Purchasers are entitled to choose any legal remedy provided by warranty if the seller does not raise a valid objection.

In the case at hand, in April 2021, the plaintiff had purchased an office container from the defendant. Shortly after delivery, the plaintiff discovered defects on the container and demanded that they be rectified. Also, the safety glass panes that had been agreed upon and which were required by law, were not included at the time of delivery. The defendant offered rescission of the contract but refused to remedy the defect.

Subsequently, the plaintiff demanded that the sale be annulled and his deposit be refunded. He also claimed compensation for costs of EUR 1,895.22 for the installation of safety glass panes (as stipulated in the contract) as well as additional costs for the purchase of a replacement. By way of counterclaim, the defendant sought the return of the container, which the plaintiff had refused to do, based on his right of retention.

The first instance court granted the plaintiff partial relief and dismissed the further claim and counterclaim for return of the container.

The court of appeal confirmed the awards to the plaintiff, but modified the decision by partially granting the claim to return the container together with the cost of replacing the glass panes in the amount of EUR 1,895.22.

On the basis of the reversal of the burden of proof, the transferor must prove that they were not at fault. Since this wasn’t done, there is an entitlement to compensation for the costs of justified rectification. The termination of the contract by rescission results in the gradual restitution of the services provided by both parties.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) confirmed the decision of the court of appeal.

OGH 10Ob66/24i (14 January 2025)