OGH: Waiver of Claims against GesbR Shareholders

Jan 19, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the following: If an action against a shareholder of a partnership under Austrian civil law (Gesellschaft bürgerlichen Rechts, hereinafter GesbR) is withdrawn by means of a waiver of claims, it is irrelevant for a subsequent impediment to litigation that the waiver of claims refers only to the shareholder as a ‘natural person’.

In the original case, the plaintiff had brought her mare to a foal pasture run by the two defendants as a GesbR. Due to an injury, the mare later had to be put down.

Prior to the present action, the plaintiff had already brought an action for damages in the same amount against one of the GesbR partners (the first defendant in this case) arising from the same events. The plaintiff withdrew the action and waived the claim after the first defendant raised the objection of lack of passive legitimation in the preliminary proceedings. However, the waiver covered ‘only the defendant as a natural person, but not the defendant in their capacity as partner in the GesbR’.

It was disputed therefore whether a new action against the first defendant was admissible.

The OGH ruled as follows:

Withdrawal of a claim with a waiver of claims precludes the reassertion of the same claim on the basis of the same legally relevant facts. A distinction must be made between a company’s liabilities and the private liabilities of the partners of a GesbR. However, the partners are the subjects of the rights and obligations of the company and they are the contractual partners of the third party. Section 1199 of the Austrian General Civil Code (ABGB) stipulates that partners are jointly and severally liable for partnership-related claims.

The complaint in the previous action did not contain any different legal facts with regard to the first defendant. In that case, liability was already based on the breach of the custody agreement. However, there is no difference in the fulfilment of the obligations arising from this contract if the contractual relationship is based on a partnership.

Therefore, the subject-matter of the action against the first defendant is the same as in the previous proceedings, which is why a procedural bar to withdrawing the action by waiving the claim exists.

OGH 10 Ob 30/23v (31 October 2023)