OGH: On the period of assumption within the meaning of Sec. 924 ABGB and the burden of proof in the case of defects that occur after handover

Oct 16, 2020 Benn-Ibler Rechtsanwälte

In the course of a work contract the defendant was commissioned by the plaintiff to manufacture, deliver and install a surveillance system. The handover took place, but only a few days after this and repeatedly thereafter malfunctions occurred. After numerous attempts at improvement on the part of the defendant, the plaintiff declared the rescission of the work contract. The defendant was then obliged to repay the (reduced work remuneration), step by step against delivery of the hardware which turned out to be the source of the defective system. The Austrian Supreme Court (Oberster Gerichtshof, OGH) could not agree with the accusations of the warranty defendants that the plaintiff had not proven the conditions for the validity of the presumption of law of Sec. 924 (2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

In the case of an effective work contract, as in this case, the contractor must produce the work owed under the contract. If the work is defective, the provisions applicable to contracts for payment in general (Sec. 922 to 933b ABGB) shall apply pursuant to Sec. 1167 ABGB.

The regulations of Sec. 924 ABGB are decisive in this case, as the supplier only provides warranty for defects that are present at the time of delivery. The burden of proof shall be borne by the purchaser (in this case the warranty claimant) even if the cause of a defect that only occurs after the transfer is not clarified. Until the time of counterevidence, it is assumed that if the defect appears within six months after handover (Sec. 924 (2) ABGB), it was already present at the time of handover. Since Sec. 924 (2) ABGB does not affect the burden of proof for the existence of a defect, the plaintiff under warranty had to prove the defectiveness of the item and the emergence of a defect within the period of six months. According to the previous instances and the OGH, this was achieved.

OGH 3 Ob 34/20a (17 June 2020)