Deductions for Unpaid Work under ÖNORM B 2110

Oct 17, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with determining whether a set-off declaration by the client in a construction contract constitutes payment under ÖNORM B 2110, and if such a declaration can preclude the contractor’s claims for compensation for work rendered.

The defendant had hired a Czech company to produce and deliver a steel structure for a construction project in Germany. The rights to any claims arising from this order were transferred to the plaintiff. During the final settlement, the defendant asserted substantial counterclaims exceeding EUR 747,000 and applied these to offset the plaintiff’s claims. This process resulted in a remaining balance of EUR 449,000, which the defendant specifically acknowledged.

The court of first instance dismissed the action, finding that the defendant’s set-off qualified as a payment under ÖNORM B 2110. As the plaintiff failed to lodge an objection within the prescribed period, the claims were considered time-barred at that stage.

The Linz Higher Regional Court, serving as the appellate body, delivered a revised judgment. The court found that the claim for approximately EUR 449,000 was not subject to the statute of limitations due to the defendant’s acknowledgement of this amount. Regarding the remaining EUR 47,000, the court overturned the earlier decision and remanded the matter to the lower court for further examination, noting ambiguity concerning whether the distinct phases of construction were intended to be settled separately.

The OGH upheld the decision of the court of appeal, clarifying that the use of disputed counterclaims as set-offs does not constitute payment within the meaning of Section 8.4.2 of ÖNORM B 2110, nor does it result in any forfeiture of rights. The provision is intended to promote transparent invoicing procedures, rather than permitting contractors‘ claims to be negated by unilateral offset declarations. Only an actual payment, which is both acknowledged and accepted by the contractor, initiates the deadline for submitting a reservation.

Furthermore, the OGH clarified that the defendant’s explicit acknowledgment of the EUR 449,000 amount restarted the limitation period under Section 1486 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). Therefore, this part of the claim is not affected by any statute of limitations. The issue of whether the remaining EUR 47,000 is time-barred depends on whether both parties agreed to invoice each construction stage separately, a question that must now be resolved by the court of first instance.

OGH 1 Ob 88/25k (9 September 2025)