OGH on the application of the 30-year limitation period to legal persons

Nov 3, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberster Gerichtshof, OGH) answered the question of the possible application of the 30-year limitation period to legal persons in the case of qualified criminal offences committed by one of their members (organs), which had not yet been conclusively judged in the case law.

In December 2005, the plaintiff subscribed to a pension insurance model marketed by the first defendant, which consisted of an elaborate combination of insurance and loan financing, in particular the taking out of a “bullet” foreign currency loan. After the monthly pension amounts fell significantly short of the guaranteed values, in 2019 the plaintiff sought a declaration of liability in full for the damages incurred and still to be incurred, as the defendant parties had deliberately concealed errors in the calculations of the pension provision model.

The (defendant) company, as well as the contracting organ, objected to the statute of limitations. In particular, the plaintiff had learned about the deviating pension amounts by means of information letters in 2014 at the latest, which is why a possible claim for damages would already be time-barred in view of the 3-year limitation period of Section 1489 sent 1 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB).

The OGH affirmed that the short (3-year) limitation period - due to the plaintiff's knowledge of the riskiness of the model - had indeed already expired in 2014. However, the 30-year limitation period of Sec. 1489 sent 2 case 2 ABGB can also be applied to legal persons, since the wording of Sec. 1489 sent 2 ABGB precisely does not differentiate between natural and legal persons, Sec. 26 ABGB equates legal persons with natural persons and the actions of members of organs are to be considered as actions of the legal person.

Therefore, if an organ acting on behalf of the legal person harms a third party through a qualified criminal act within the meaning of Sec. 1489 sent 2 case 2 ABGB, a claim for damages against the legal person only becomes time-barred after 30 years. This applies in particular ("in any case") if the economic success of the criminal act has occurred in the assets of the legal person. Since there were no findings on the prerequisites for the 30-year limitation period, the OGH overturned the decision of the Court of Appeal and referred the case back to the court of first instance for a new decision.

OGH 6 Ob 92/21d (06.08.2021)