OGH on the termination of existing contracts for good cause

Apr 1, 2022 Benn-Ibler Rechtsanwälte

A premature termination for good cause is applicable if it is due to a substantial change of circumstances which cannot be attributed to either of the contracting parties.

According to the case law on Section 1117 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the lessee is entitled to terminate the contract if he cannot use the property as agreed for reasons beyond his control. In this case, the fault of the landlord is irrelevant.

The cooperative hunting area of the plaintiff hunting association consists of five partial hunting areas. In 2013, the plaintiff established each of these five hunting grounds. She leased sub-hunting area A to the defendant.

In 2018, it became known at the plaintiff's regular general meeting that the defendant’s termination was still being reviewed for its legal validity and that, should the termination be found to be legally compliant, self-management of the partial hunting area should be sought. This self-management of the hunting ground (in the case of termination by the defendant) was then decided unanimously.

The lessee has the right to terminate the contract if he can prove other important circumstances which make it appear unreasonable for him to have to continue with the existing contract. The reason for the premature termination of the contract does not necessarily have to originate from the domain of the landlord. Premature termination for good cause is only not possible if the lessee or the persons attributable to him are responsible for the impairment of use or if the circumstances which are to justify the premature termination of the contract are in the domain of the lessee.

The principle that the lessee is always entitled to terminate the existing contracts if the reasons for doing so are not within the lessee's domain also applies to a hunting lease. A contracting party is always entitled to terminate a hunting lease prematurely if the continuation of the contractual relationship is unreasonable for reasons lying with the other contracting party. However, this is not the only possibility for an early termination for cause: Such a termination may also be considered if it is due to a substantial change in circumstances which is not attributable to either of the contracting parties.

OGH 5 Ob 60/21s (15.11.2021)