BFG: The classification of a "surety" and "guarantee" under civil law - essential differences also in the assessment of legal fees

Oct 30, 2020 Benn-Ibler Rechtsanwälte

In a lease agreement concluded between the plaintiff and the leaseholder, a contractual clause was inserted. According to this, a guarantor guarantees the leaseholder that he will be liable for his payment obligations should he fail to meet them despite a written request and setting of a deadline. The tax office thereupon set a legal fee and assumed that a declaration of surety was available (§ 33 TP 7 para. 1 of the Fees Act 1957). The plaintiff denied this and submitted evidence that argued for a non-accessory liability of the guarantor and that therefore a guarantee undertaking existed for which no legal fee was payable.

A classification under civil law is decisive for the delimitation of the two terms. The concept of surety is based on § 1346 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) (accessory liability). With the guarantee contract, a (non-accessory) liability for performance by a third party is assumed which is independent of the principal debt and independent of its existence. It is also essential for the guarantee contract that the declaration expresses the independence in the form of a comprehensive waiver of objection.

Detached from the designation in the declaration it is to be clarified in the way of the interpretation of the contract (§ 914 ABGB) whether a guarantee is present. Accordingly, the intention of the parties must be understood, according to which here, due to the designation "guarantor" and the express reference to § 880a 2nd case ABGB by the parties, the existence of a non-accessory guarantee declaration is indicated. Similarly, according to the case law of the Austrian Supreme Court (Oberster Gerichtshof, OGH), the promise of payment contained in the guarantee statement ("upon first written demand") granted the beneficiary an abstract legal position, thus constituting a guarantee. Thus, the declaration expresses the independence required for the existence of a guarantee in the form of a comprehensive waiver of objections.

The guarantor is therefore liable independently of the existence of the principal debt secured, which constitutes a declaration of guarantee that is not subject to the obligation to pay fees. An appeal to the Supreme Administrative Court (Verwaltungsgerichtshof) is not permitted.

BFG GZ RV/6100496/2016 (03 August 2020)