OGH: Limitation Periods for Revocation of Prenup-Like Gifting

Apr 19, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that the right to revoke a gift made with a view to a future marriage (prenup-like gifting) after divorce is time-barred after 30 years.

The dispute in the case at hand concerned a transfer agreement and testamentary succession agreement between the deceased and the defendant, his (former) wife. The deceased had made a gift to his future wife of a half-share in a piece of land which was used for agricultural purposes and on which a residential building and, later, a matrimonial home had been built. It was expressly agreed that the subsequent marriage would be a condition for the transfer of the share. The defendant had formerly assumed certain financial and other obligations and contributed personal financial resources as well as physical work.

After the divorce, which was the fault of both parties, the deceased revoked the gift in his application for division of the marital property. The estate then filed an application for retransfer of the gift within the land registry.

The defendant’s response was that the gifting had been a transfer of assets for consideration because she had contributed financially as well as by providing other services.

The court of appeal was of the opinion that the claim was time-barred (with a three-year limitation period under Section 1487 in conjunction with Section 948 of the ABGB). Although a right to rescind can be exercised by a unilateral declaration, which is subject to the condition that it be received, a judicial assertion is required to interrupt the limitation period.

The estate received a favourable ruling from the OGH:

According to case law, if the gifting is similar to that of a prenup (Section 1217, ABGB), the no-fault or at-equal-fault spouse may revoke the gift by analogy with Section 1266 ABGB. This is the more specific provision for avoidance on the grounds of mistake and revocation on the grounds of gross ingratitude (Section 948 of the ABGB), with different legal consequences.

For this reason, the limitation period of Section 1487 of the ABGB does not apply, since the list contained in this provision is exhaustive and must be interpreted restrictively, so that an analogous application is excluded. Therefore, the general thirty-year limitation period stated in Section 1478 of the ABGB applies to revocation of a gift by analogy with Section 1266.

OGH 3 Ob 234/23t (28 February 2024)