OGH: No frustrated costs in case of storage of unrelated objects
The Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that there are no frustrated costs if a warehouse can generally be used, but the objects intended for it are not stored in it.
The plaintiff sold the defendant an allotment house (“superädifikat”). At the same time they agreed that the plaintiff should build the allotment house on a plot of land first to be leased by the defendant. After the conclusion of the contract, the plaintiff dismantled the allotment house and stored it in a warehouse that he had rented as part of his own business. The warehouse was thus 98% full. His own cellar was filled with tools, screws and materials because the warehouse intended for this purpose was occupied by the allotment house.
After the defendant was unable to lease the intended plot of land, the plaintiff also withdrew from the purchase contract.
He now demanded compensation from the defendant for the storage costs he had incurred due to non-fulfilment.
The court of first instance considered the storage costs to be compensable frustrated costs. The Court of Appeal did not award compensation. This was also the position before the OGH.
Accordingly, the present case did not involve frustrated expenses. Frustrated costs are costs that have not been caused by the damage event, but have become useless. In this case, however, the plaintiff was able to use the rented warehouse during the entire period. The fact that he was prevented from storing other objects in the warehouse due to the specific use (storage of the dismantled allotment house) does not make the rent paid frustrated expenses.
The plaintiff had not suffered any other damage here either, since he had not rented an additional warehouse, but placed the remaining items in his cellar. The storage costs therefore did not contribute positively to damage and were therefore not compensable.
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