Rescission in Sales: Verbal Agreements vs. Written Clauses

Oct 3, 2025 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) reviewed the issue of whether a purchaser holding return rights bears liability for stone chip damage.

The plaintiff purchased an electric vehicle from the defendant for EUR 39,750. During the sales discussion, the plaintiff inquired about the vehicle's range, specifying a minimum requirement of 200 km. The defendant’s representative referred to a brochure that initially indicated a range of 325 km, subsequently updated to 285 km. The representative further informed the plaintiff that the vehicle was expected to achieve approximately 250 km during summer conditions and around 200 km during winter.

The purchase agreement specified under ‘Other agreements’ that all agreements are required to be documented in writing. This includes ancillary agreements, assurances, and any subsequent modifications to the agreement.

In operational conditions, the vehicle demonstrated an actual range between 195 km and 205 km. Additionally, at temperatures below 0°C, the range may decrease by up to 10% during winter months.

The court of first instance dismissed the claim. Conversely, the court of appeal declared the purchase contract null and void, ordering the defendant to remit EUR 37,110.63 plus interest to the plaintiff upon return of the vehicle.

The OGH determined that the written form clause stipulated in the contract requires signatures from all parties for the agreement to be legally binding. Any statements made during contract negotiations prior to execution cannot subsequently override this form requirement. A deviation from the written form requirement would only be recognised in instances where clear and unambiguous statements specifically addressed the waiver of such a requirement.

Nevertheless, it contravenes the principles of fair dealing for one contractual party to provide prior verbal assurances and subsequently rely on conflicting provisions within the written contract. Such conduct may be deemed dishonest, particularly when a party intentionally leverages its position to the disadvantage of the other. In this instance, the issue pertained to information regarding the vehicle’s range, as the plaintiff regarded this characteristic as fundamental to the agreement. Furthermore, the plaintiff's reliance on the accuracy of this representation was evident to the defendant.

Section 335 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) stipulates that a dishonest possessor is required to return all benefits obtained from possessing another party’s property, as well as compensate for any damage resulting from such possession. The statute specifies that liability extends to accidental damages, provided these would not have occurred without the unlawful and culpable use of the property. This provision encompasses all harm to the property that can be adequately attributed to dishonest possession. A debtor is deemed dishonest upon becoming aware of the right of restitution and the corresponding obligation to restore the property.

In the present case, a definitive determination regarding the plaintiff’s honesty at the time of the alleged damage cannot yet be made, as it remains unclear whether she was aware of her right to contest the contract when the damage occurred.

OGH 3 Ob 188/24d (24 June 2025)