OGH on Recovery for Non-Payment of Debt

Dec 8, 2023 Benn-Ibler Rechtsanwälte

Anyone who pays a non-debt in error can reclaim the amount paid under Section 1431 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). The prerequisite for this is that the erroneous payment was the result of an unjustified transfer of funds. However, it does not matter who is responsible for the error.

The plaintiff submitted a declaration of debtor by a third party and was therefore obliged to make payments to the creditor, a limited liability company (GmbH). The latter pursued enforcement proceedings against the debtor. However, the wrong company was named to the plaintiff. As a result, the plaintiff erroneously made payments to another GmbH between 2012 and 2019. Upon discovery of the error, the plaintiff made the payments to the creditor actually collecting the debt in fulfilment of their obligation as third-party debtor. The plaintiff then claimed reimbursement from the defendant for the amount of the payments made in error.

Both the court of first instance and the court of appeal upheld the claim. The OGH upheld the decision of the lower courts.

The plaintiff is entitled to reclaim according to Section 1431 of the ABGB. By making the payments, the plaintiff intended to fulfil their obligation to the GmbH which was actually conducting the proceedings, but had made the payments to the defendant in error. The defendant was of the opinion that there had been no pecuniary benefit as a result of the payments and also argued that it was entitled to sue the debtor. However, this objection is irrelevant. The defendant has no legal basis for receiving the payments from the plaintiff. He never enforced a claim against the debtor and the plaintiff never submitted a third-party declaration.

In this case, the plaintiff’s intention was not the satisfaction of a third-party debt, namely the debtor’s debt to the defendant. The plaintiff’s intention was merely the payment of its debt as a third-party debtor to the defendant GmbH.

Consequently, the plaintiff was entitled to reclaim the payments from the defendant under Section 1431 ABGB.

3 Ob 142/23p (6 September 2023)