OGH on Statute-Barred Claims

Nov 24, 2023 Benn-Ibler Rechtsanwälte

The limitation period for claims for damages has recently been addressed by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The three-year limitation period pursuant to Section 1489 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) begins to run when the damage and the person who caused the damage become known.

In the case at hand, the plaintiff and her brother were joint owners of two properties. Each owned two thirds of one property and one third of the other. In both properties, a right of usufruct was registered in favour of the mother.

The plaintiff and her brother intended to exchange their one-third shares. This would make them the sole owners. In 2015, the plaintiff commissioned a valuation from the defendant in order to determine the value of the properties.

The defendant was unaware of the intended exchange and therefore made a deduction of 15%, wrongly assuming that the properties were co-owned. Furthermore, although the defendant’s share was unencumbered, the defendant deducted 5% from the right of usufruct when calculating the value.

If the calculation had been correct, the plaintiff would have received EUR 204 000 more in compensation. She therefore claimed damages from the defendant in 2021.

The OGH now considered whether the claim was time-barred.

The point at which the injured party’s knowledge is such that an action can be brought with a reasonable chance of success determines when the limitation period begins to run. This is the case when a conclusive link between the wrongful conduct of the injuring party and the damage can be established on the basis of the known circumstances. However, the injured party does not have to be aware of all the details of the facts.

The plaintiff could have noticed the inaccuracy of the expert’s report as soon as it was accepted. As the calculation of the one-third shares is a simple arithmetical task, no specialist knowledge would have been required to check the report. Consequently, the claim for damages was already time-barred in 2021.

7 Ob 68/23k (30 August 2023)