OGH: Hunting guide is the sole proper plaintiff under Section 364 ABGB
In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) addressed the right of a hunting co-partner of a hunting lease in the course of an application for injunctive relief.
The defendant is the owner of a property which adjoins part of the cooperative hunting area leased by a hunting club. The defendant's property is used for its own hunting. The plaintiff is the hunting guide of the hunting club and also one of its co-partners. On the hunting ground boundary between the adjoining hunting grounds, openings were made behind which noise-based game deterrent devices were installed. It could not be ascertained whether these repelling devices were ever put into operation, as there was no external power source.
The plaintiff sought an injunction, to which the defendant objected that he lacked the capacity to sue. The Court of First Instance and the Court of Appeal dismissed the claim for injunctive relief, as the consent of the other co-partners would be necessary for the participation of the hunting club.
The OGH held that the appeal was admissible and justified. It ruled:
A hunting club has no legal identity of its own and is understood as a civil law partnership. The hunting guide to be appointed according to Section 27 Lower Austrian Hunting Act (NÖ Jagdgesetz) has to exercise the hunt under uniform management. Pursuant to Sec. 364 para 2 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the owner of a plot of land may request the omission of noises that exceed the customary level. According to established case law, the injunction is also available to property-owning occupants. Incorporeal objects, such as claims under the law of obligations, are jointly owned by the partners according to Section 1180 ABGB, which is why the plaintiff would need the consent of all partners. However, according to Sec. 890 ABGB, a co-partner is entitled to bring an individual action if a creditor seeks a settlement which, by its nature, from the outset brings about the satisfaction of all creditors. This includes in particular injunctions. The OGH granted the request for injunctive relief, since preparatory acts are also covered by a request for injunctive relief in the case of a serious and direct threat of noise and the absence of the external power source does not harm this.
However, the OGH left open whether this individual power of action always applies or only in the course of emergency jurisdiction.
Efficient Legal Information 
Legal Jobs 
Innovative LegalTech Solutions