Usancen Blog
OGH on the application of the 30-year limitation period to legal persons
In the present case, the Supreme Court (Oberster Gerichtshof, OGH) answered the question of the possible application of the 30-year limitation period to legal persons in the case of qualified criminal offences committed by one of their members (organ...
DE: VW diesel scandal - assessment of the benefit of use with leasing
In September 2021, the German Federal Supreme Court (Bundesgerichtshof, BGH) ruled that no claim for reimbursement of the leasing instalments can be made for a leased vehicle affected by the VW emissions scandal. This is because the benefit of a leas...
DE: Digital contract generator "smartlaw" is permissible
The German Federal Supreme Court (Bundesgerichtshof, BGH) had to decide whether the legal-tech application "smartlaw", a contract document generator that creates various legal documents with the help of a question-answer system and saved text modules...
BMDW: Draft for a "Grace Period Law" is available
The Federal Ministry for Digitalisation and Economic Affairs (Bundesministerium für Digitalisierung und Wirtschaftsstandort, BMDW) has submitted a draft for the so-called "Grace Period Act". It mainly deals with the suspension of the exercise of a tr...
VwGH: GewO – Rights of neighbors in the case of emission-neutral changes
The Administrative Court (Verwaltungsgerichtshof, VwGH) clarified in the reasonable appeal that according to Section 358 para 1 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GeWO), the authority only has to determine whether the...
OGH on the guarantee demand of the general contractor
In the case at hand, the Supreme Court (Oberster Gerichtshof, OGH) examined the legality of a significantly excessive request for collateral by the contractor of a building within the meaning of Section 1170b of the Austrian Civil Code (Allgemeines b...
OGH on service in insolvency proceedings
According to Section 257 para 2 of the Insolvency Code (Insolvenzordnung, IO), the consequences of the service already come into effect through the public announcement, even if the specific service has been omitted. Notwithstanding the individual ser...
OGH again on the discernibility of witnesses in a will
The Supreme Court (Oberster Gerichtshof, OGH) once again commented on the question of which information on witnesses to a will is sufficient to ensure their identifiability under the new inheritance law (Erbrechtsänderungsgesetz 2015, ErbRÄG 2015). I...
ECJ - Air passenger rights: Compensation in case of group strike
The European Court of Justice (ECJ) handled the question of whether a strike by the cabin crew of a subsidiary company in solidarity with the striking staff of the parent company is to be considered an "extraordinary circumstance" under Article 5 par...
DE: "Rail to Fly" ticket as part of the package trip
The German Federal Court of Justice (Bundesgerichtshof, BGH) ruled in June 2021 that a so-called “Rail to Fly” ticket, if it is listed as an “advantage” when booking a package holiday without any reference to an additional fee, can be used as a servi...
VwGH: Deduction ban for income-related expenses with standard taxation
The Administrative Court (Verwaltungsgerichtshof, VwGH) ruled on the question of whether a ban on deducting business expenses and income-related expenses also applies when exercising a standard taxation option with regard to income from capital asset...
OGH: Scope of the creditor's duty of verification according to § 7(1) VKrG
In a decision, the Supreme Court (Oberster Gerichtshof, OGH) examined the admissibility of certain clauses in the General Terms and Conditions (Allgemeinen Geschäftsbedingungen, AGB) of a mail order company. In doing so, it elaborated on the scope of...
OGH: Lawful dismissal in case of refusal to have regular COVID tests
The Supreme Court (Oberster Gerichtshof, OGH) has ruled that the termination of a nurse's employment is permissible if the nurse fails to undergo regular COVID-19 testing. In the case at hand, the defendant, who runs a nursing home for the elderly, t...
OGH: Duplicate certificate of conformity as an hitch to good faith
In its case law, the Supreme Court (Oberster Gerichtshof, OGH) handled the question of whether and, if so, to what extent the commercial purchaser of a used vehicle can act in good faith due to the existence of a mere duplicate certificate of conform...
OGH: Compensation in the case of damages from incorrect counsel
In the case of incorrect counsel, the difference in assets is to be compensated, which would not have occurred if the advice had been given in accordance with the duty. The fact that a damaging event can also bring benefits does not hinder the existe...
DE: Right of contestation of a GmbH shareholder
In its ruling, the German Federal Supreme Court (Bundesgerichtshof, BGH) confirmed the comprehensive legitimising effect of the list of shareholders of a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) and ruled that, in princ...
VwGH: Section 79 GewO - subsequent stipulations
The "adjustment" of a legally binding notice of approval for commercial facilities under trade law is possible under Section 79 para 1 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GewO). If, for example, it becomes apparent aft...
OGH: Due diligence in the valuation of a property
The Supreme Court (Oberster Gerichtshof, OGH) examines whether deviations in the appraisal of the value of real estate are still in accordance with due diligence. The plaintiff commissioned the defendant, a real estate brokerage company, with the sal...
OGH on the equivalence of fax and e-mail when requesting a guarantee
The Supreme Court (Oberster Gerichtshof, OGH) commented on whether a declaration by e-mail is equivalent to a declaration received by fax when requesting a guarantee. In the case at hand, the defendant undertook to provide the plaintiff with security...
DE: Extended liability period of a limited partner
The German Federal Supreme Court (Bundesgerichtshof, BGH) was obligated to decide when, in the case of a reduction in the liability amount of a limited partner, the five-year period of extended liability under Section 160 of the German Commercial Cod...
DE: Distribution of profit is contestable under insolvency law
According to the German Federal Supreme Court, if a (sole) shareholder decides to carry forward an established profit, this may constitute a shareholder loan in economic terms, insofar as, at the time of carrying forward, a distribution of profits wa...
COVID-19: Special care period phase 5 approved
The National Council recently cleared the way for the fifth phase of the COVID-19 special care period (“Sonderbetreuungszeit”). It concerns continued payment of wages when employees cannot work due to special care obligations in connection with the c...
DE: Changes in the new foundation law
A new unified civil law relating to foundations is to come into force in Germany on July 1, 2023. The aim of the draft law is both a greater standardisation of foundation law and the introduction of a central foundation register, to the effect that t...
VwGH: ImmoESt on the sale of donated land
The Administrative Court (Verwaltungsgerichtshof, VwGH) examined the question of whether real estate income tax (Immobilienertragsteuer, ImmoESt) can be incurred on the sale of inherited or donated real estate by a non-profit legal entity. The partic...
OGH on the buyer's conversion right
When examining the conversion right, the specific contract must be taken into account. The interests of the contracting parties must be weighed objectively on a case-by-case basis. In doing so, a comprehensive weighing of the interests of both partie...
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