OGH on the Formality of Gift Agreements

Mar 29, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has given a ruling on the formal validity of so-called ‘mixed gift’ agreements. According to Section 943 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB), ‘real conveyance’ may take place as physical conveyance, conveyance in writing, conveyance of property, and conveyance of title.

The grandmother (the testator), who died in 2008, gave her granddaughter (the plaintiff) a condominium including a parking space in 2000. In return, the plaintiff undertook to repay outstanding loans. As the plaintiff’s father has a right of usufruct, the property was transferred directly to him with the plaintiff’s consent. There was no notarisation of the deed, nor was the plaintiff’s right of ownership legally registered in the land register. The defendant appeared in the land register as the universal successor in title after the death of the testator.

The plaintiff sought the defendant’s consent to register the title. Considering the gift deed to be a ‘mixed gift’, with the paid part predominant, and confirming the existence of a real transfer, the lower courts upheld the claim. Therefore, the contract, not concluded in the form of a notarial deed, is formally valid.

The decision of the lower courts was upheld by the OGH.

A ‘real transfers’ as standardised in Section 943 of the ABGB is primarily intended to protect against hasty transactions and is the opposite of a simple promise. An off-book transfer is sufficient in the case of real estate. The testatrix removed her personal belongings from the apartment and handed over the keys. She also informed the property management company that the apartment had been transferred to the plaintiff. The formal validity of the contract is not affected by the fact that the testatrix gave the keys to the plaintiff’s father as an intermediary. Similarly, the plaintiff is not prevented from acquiring ownership by the usufruct granted to her father.

OGH 2 Ob 229/23z (20 February 2024)