Usancen Blog
OGH on Contractors Duty to Warn
Civil LawIf a contractor culpably breaches their duty to warn under Section 1168a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB), they must put the client in the position the client would have been in had the duty to warn b...
OGH: Right to Info on Small-Value Accounts
Banking LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that an individual has the right to know all the information given to them when opening a savings account, even if the corresponding savings account passbook is not presente...
OGH: No Representation of Spouse Unworthy to Inherit
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled: Section 542 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) does not provide for the representation of an unworthy spouse. The de...
OGH: Waiver of Claims against GesbR Shareholders
Corporate LawThe 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a shareholder of a partnership under Austrian civil law (Gesellschaft bürgerlichen Rechts, hereinafter GesbR) is withdrawn by means o...
OGH: Recreational Value and Rest-Period Compensation
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that recreational value can be compensated as damages for breaches of minimum rest periods. In the case at hand, the plaintiff had been employed as a school caretaker and ma...
Does Attending a Party on Sick Leave Justify Dismissal?
Labour LawIn the event of illness and subsequent incapacity for work, employees must conduct themselves in such a way as to ensure that their ability to do their job is restored as quickly as possible. Conduct that may adversely affect the course of the illnes...
ECJ: New Ownership in Notary’s Office – Business Transfer?
European LawCan changing the ownership of a notary’s office be considered as transferring a business? The European Court of Justice (ECJ) says yes – even if notaries are appointed as business owners by the State. In the first national case to be decided, four em...
GER: BGH on Lawyers E-Mailbox Malfunctions
Procedural LawA screenshot is enough to prove that the electronic mailbox program for German lawyers (besonderes elektronisches Anwaltspostfach, hereinafter beA) failed for several hours. This was decided by the German Federal Court of Justice (Bundesgerichtshof, ...
OGH on Remuneration Set-Offs
Labour LawIn Austria, employees are entitled to a remuneration even if they are released from work. However, remunerations earned elsewhere must be set off against the original entitlement to remuneration. The offsetting rule of Section 1155 of the Austrian Ci...
OGH: Duty to Inform Insurance Provider
Civil LawPolicy holders must inform their insurance company truthfully and fully of all circumstances of the claim. This duty of disclosure ends with the refusal of the insurer to pay out a benefit. In 2016, the plaintiff bought a used car. As the car was equ...
ECJ Strikes down Austrian Comm Platform Regulation
European LawThe European Court of Justice (ECJ) has ruled that the centrepiece of Austria’s law against hate speech on the Internet, the Communications Platforms Act (Kommunikationsplattformengesetz, hereinafter KoPl-G), is contrary to EU law. Meta, Google, and ...
OGH: Failure to Properly Record Working Hours: Grounds for Dismissal
Labour LawIt is not just an administrative offence to record working hours untruthfully. It is also a serious breach of trust and can be grounds for dismissal. When the coronavirus pandemic began, the defendant employer asked employees to work from home on Fri...
OGH Rules on Tour Operator GT&Cs
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that the following clauses in tour operators’ general terms and conditions are invalid: ‘The total price of the package holiday [...] cannot be determined before the conclus...
GER: Amended GWB to Modernise Competition Law
Competition LawThe 11th amendment to the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkung) is a response to the critical price developments following Russia’s attack on Ukraine and a further step towards modernising competition law. The a...
OGH on Serious Defects under Consumer Guarantees Act
Civil LawFor the first time, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on when a defect under the new Consumer Guarantees Act (Verbrauchergewährleistungsgesetz, hereinafter VGG) directly entitles consumers to rescission of t...
ECJ: Free First Copy of Patient Records
European LawThe European Court of Justice (ECJ) has ruled on the interpretation of the General Data Protection Regulation (GDPR). Patients have the right to request a first copy of their medical records free of charge. There does not have to be any reason for th...
OGH on Product Liability in Austria
Civil LawA product is defective if it does not provide the level of safety that is reasonable under the circumstances. However, if the defect was not foreseeable according to the state of science and technology at the time, the exclusion of liability under Se...
OGH: Right of Recourse under Austrian Insurance Law
Civil LawGrossly negligent behaviour is deemed to have occurred if there was an objectively particularly serious failure to act. Such breach of due diligence must also be considered reprehensible from a subjective viewpoint. The defendant’s grandfather is the...
GER: Ne bis in idem – Justice or Legal Certainty?
Constitutional LawOnce you have been legally acquitted, you do not have to worry for the rest of your life that your case will be reopened if there is new evidence. This controversial provision of the 2021 German Criminal Procedure Code has now been declared unconstit...
GER: Charges for Early Loan Repayment
Civil LawAccording to the Higher Regional Court of Frankfurt am Main, so-called flat-rate bank charges in connection with early loan repayments can only be applied if consumers are given the opportunity to show that the bank has suffered lower or no damages. ...
ECJ on Pilot Pay: Equal Treatment = Unequal Treatment?
European LawAccording to the European Court of Justice (ECJ), part-time employees are unfairly disadvantaged if they have to work the same number of hours as their full-time co-workers for additional pay. This constitutes unlawful discrimination. A German pilot ...
OGH on Recovery for Non-Payment of Debt
Civil LawAnyone who pays a non-debt in error can reclaim the amount paid under Section 1431 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). The prerequisite for this is that the erroneous payment was the result of a...
ECJ: Compensation after Denied Boarding
European LawPassengers are entitled to compensation under the Air Passenger Rights Regulation (Regulation 261/2004) if the airline denies them boarding on a return flight, even if they do not arrive at the airport on time. This has recently been decided by, amon...
OGH: Risk Exclusion in Legal Expenses Insurance
Civil LawA clause in the general terms and conditions of a legal-expenses insurance policy has been declared invalid by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The Austrian Association for Consumer Information (Verein für Konsument...
GER: Binding Gift-Tax Valuation
Public LawIf the value of a property is determined separately, it is binding for all subsequent gift tax assessments. According to the Federal Fiscal Court (Bundesfinanzhof, hereinafter BFH), if the donee considers the assessment to be too high, they must appe...
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