OGH: On restitution in enforcement proceedings

Mar 25, 2022 Benn-Ibler Rechtsanwälte

If the obligated person has made a payment and the enforcement order is subsequently declared invalid, annulled or otherwise declared ineffective pursuant to Section 39 para. 1 no. 1 of the Enforcement Code (Exekutionsordnung, EO), a claim for restitution under the law of enrichment is available.

In the present case, the plaintiff granted a loan to the defendant. Since the loan was not repaid by the due date, the plaintiff requested that the defendant be ordered to repay it. The action for a reminder remained unopposed, as a result of which the plaintiff was granted enforcement of his claim under Sec. 294a EO. After the third party debtor paid, the defendant was granted reinstatement in the prior status in the original proceedings. The enforcement proceedings with all enforcement acts already executed were cancelled.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) considered the following. Pursuant to Sec. 39 para. 1 no. 1 EO, the enforcement is to be discontinued with simultaneous annulment of all enforcement acts executed up to that point if the enforcement order on which it is based has been declared invalid, annulled or otherwise declared ineffective by a final decision. However, this does not mean that the third party debtor must reclaim amounts already paid out in compliance with the execution of the claim or that the debtor must reimburse these amounts in the course of the enforcement proceedings. The obligated person who has paid on the basis of an enforcement order that has lapsed pursuant to Sec. 39 para. 1 no. 1 EO is usually entitled to a claim for restitution under the law of enrichment.

Sec. 1435 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) is understood as the basis for the recognition of a claim for restitution due to the cessation of the reason and the lack of the expected success. It generally applies in the event of the cessation of those circumstances which, after weighing the interests and the meaning of the transaction, formed the basis of the performance.

If the OGH reverses the decision of the lower courts, the party making the payment is entitled to a claim for restitution under Sec. 1435 ABGB even before the conclusion of the proceedings to be continued, because the reason for the payment, namely the enforceable judgment, has subsequently ceased to exist. This case law is therefore to be applied to other cases of the elimination of the enforcement order within the meaning of Sec. 39 para. 1 no. 1 EO. In any case, this also applies to the case to be assessed here, namely the granting of restitutio in integrum against the failure to meet the deadline for filing an objection against an order for payment.

OGH 5 Ob 90/21b (30.11.2021)