OGH: Fundamentals for the calculation of the care legacy

Aug 25, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of the principles according to which the amount of the care legacy must be determined (Sec. 678 (1) Austrian Civil Code - Allgemeines Bürgerliches Gesetzbuch, ABGB).

In the case at hand, the plaintiff cared for her deceased partner (care level 6) for many years until his death. The care allowance flowed back to her as remuneration. Long before his death, the deceased concluded a contract with the plaintiff in which he granted her the "personal, lifelong right to the use of his home, to be recorded in the land register". In return, the plaintiff undertook to provide necessary care and nursing services.

The plaintiff requested the payment of the care legacy. The care services would exceed the value of the right to use the flat. She based the care services provided on a fictitious hourly wage of EUR 14.

The defendant contested the claim, as the plaintiff received both a payment and a benefit for the care services, namely the right to the use of the residence. The value of that right was held to exceed the amount of the claim. The hourly rate was also deemed excessive.

What was in dispute before the OGH was (among other things) how the amount of the long-term care legacy is to be determined in concrete terms. In this regard, the OGH stated as follows:

First of all, according to the wording of the law ("type, duration and extent of the services"), the amount depends on the perspective of the carer and not of the person being cared for. For the concrete calculation, principles of enrichment law must be applied mutatis mutandis. In accordance with Sec. 1152 ABGB, the decisive factor is how high the appropriate wage of the carer would have been. The minimum wage rates for household employees can serve as a benchmark. A certain deduction from the market wage must be taken into account, also due to the predominant family relationship. Ultimately, the determination must be made at the discretion of the court in accordance with Sec. 273 of the Code of Civil Procedure (Zivilprozessordnung, ZPO).

In this specific case, the OGH considered an hourly rate of EUR 14 to be appropriate in view of the many years of very time-intensive care, some of which was required at night and was also demanding.

OGH 2 Ob 63/21k (24.06.2021)