OGH on the professional liability of a drafter of a contract

Aug 11, 2021 Benn-Ibler Rechtsanwälte

In the case of contractual modalities that have already been stipulated, the drafter of a contract is only obliged to formulate what has been agreed accordingly and to put it into a legal form, but not to propose alternative contractual constructions.

In the present case, the plaintiffs carried out a property transaction. In doing so, they decided upon a method of financing even before the actual contract was drawn up. The defendant lawyers were not involved in the preparation or presentation of the financing concept. Only after agreement on the financing model were the defendants instructed to draw up the corresponding contracts and to take over the handling of the transaction as trustee. Due to the choice of the method of financing, land transfer tax and registration fees were incurred, which could have been avoided by an alternative financing concept.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) stated with regard to the professional liability of the contracting party that the contracting party had a duty to all contracting parties to protect their interests with due care. The contracting parties could rely on the drafter of the contract to protect them from disadvantages and to provide for their legal and factual security. In particular, a lawyer as draftsman of a contract should draw attention to concerns. However, if the parties only want to put a contract they have already concluded into the appropriate legal form, the drafter of said contract has only the duty to formulate what has been agreed accordingly and to make meaningful additions. It was then not his task to work towards an amendment of the concluded contract.

Accordingly, in the present case it was only the duty of the defendant lawyers to implement the agreed purchase and building contract, but not to intervene in the will of the plaintiffs regarding the chosen financing structure and to suggest possible other financing models on their own initiative and to present alternatives that would have avoided additional fees.

OGH 9 Ob 9/21w (27.05.2021)