OGH: On the compensation of frustrated expenses
In the case of (mere) damage to property, compensation for frustrated expenses can only be considered if the legal position (legal justification) is an asset, transferable and realisable for the intended purpose. As a second prerequisite, the expense must be for a concrete, one-time use of the acquired legal position.
In the present case, the plaintiff is active in rallying and participated in a January rally. For this purpose, he rented a Ford car that had been prepared for rallying, purchased racing tyres and fuel with a higher octane rating. After completing the first special stage, a traffic accident occurred on the connecting route between the first and second special stages. The plaintiff was then no longer able to continue the rally due to the damage to the car and demanded compensation for his expenses frustrated by the accident.
The Austrian Supreme Court (Oberster Gerichtshof, OGH) considered the following: In general, "frustrated expenses" are expenses which were not caused by the damaging event itself, but which have become useless as a result of it. The damage does not lie in the expenses as such - which were not caused by the event - but in the absence of their otherwise occurring result.
The previous case law, which explicitly deals with the award of frustrated expenses in the case of property damage in tort law, is restrictive. It is essentially in favour of compensation only insofar as the expenses were incurred for the damaged object itself in order to be able to use it again later.
In the case of personal injury, the OGH affirmed compensation for the cancellation fee for a (package) trip booked before the accident. However, from the point of view of the concept of damage in Section 1293 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch ABGB), personal injury and damage to property are on an equal footing. Overall, there are therefore good reasons to apply the considerations made in the case of personal injury also to the case of mere damage to property, in both cases an absolutely protected legal interest is violated.
In the case of (mere) material damage, compensation for frustrated expenses can therefore only be considered if, on the one hand, an asset, transferable and realisable legal position for the intended purpose is involved; on the other hand, there must be an expense for a temporally concrete one-time use of the acquired legal position.
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