Reservation of title (Austria)

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In Austrian law, the retention of title is not expressly regulated in the law (e.g. ABGB ), but has always been regarded as a permissible agreement due to the freedom of contract (and the dispositivity of § 1063 ABGB).

The retention of title is a very efficient means of security. It enables the seller to sell on credit without the risk of selling the item e.g. B. to lose in execution or bankruptcy proceedings on the part of the buyer; he can vindicate the thing - provided that the buyer is in default with payment of the purchase price and the seller has withdrawn from the purchase contract - by anyone ( § 366 ABGB, property lawsuit ). The retention of title thus enables the basically safe sale of goods on credit.

A reservation of title requires an agreement. The (binding) real agreement between the contracting parties (that ownership is to be transferred) usually takes place at the time the purchase contract is concluded. If a purchase contract has been concluded and no retention of title has been agreed, the agreement of retention of title (as an amicable amendment of the agreement in rem that has already been concluded unconditionally) would still be possible until the purchase item is handed over. However, if the seller only declares a retention of title unilaterally (e.g. at handover), this is ineffective in terms of property law according to the prevailing view (apart from special constellations that can ultimately be justified by an agreement) because the agreement in rem can not be unilaterally abandoned only by the seller .

An extension of the retention of title, according to which the ownership of the purchased item should only pass to the buyer when other claims of the seller against the buyer have also been settled, is ineffective in terms of property law, because such a construction is to be valued as a transfer by way of security, so that the publicity rules of the lien are observed Need to become. If the extension agreement becomes ineffective, however, a simple retention of title remains in effect.

With the handover, the conditional buyer does not acquire unconditional property, but property with a condition precedent (expectant right). The condition precedent is usually the full payment of the purchase price. If he damages the thing, he is liable under civil law and - in the case of intent - also criminally for damage to property ( § 125 StGB ); If he sells them, criminal liability for embezzlement ( § 133 StGB) is possible.

It can be problematic for the seller if the buyer on his part resells: Under the conditions of a purchase in good faith ( Section 367 of the Austrian Civil Code), the second buyer, then more worthy of protection, can acquire property in good faith, trusting the unconditional property of the conditional buyer. With this, however, the reserved property of the seller expires. There are several ways to prevent this:

  • Forwarded retention of title: The (first) buyer points out the retention of title to the second buyer, so that the latter is no longer in good faith. The second buyer does not acquire the unconditional property of the (first) buyer, but (only) conditional property. Of course, the (first) seller has no influence on whether the (first) buyer actually informs the second buyer.
  • Extended retention of title: If the (first) seller would like to better protect himself, the following constellations come into question:
    • with advance assignment : The (first) seller agrees with the (first) buyer that he will now assign any future claims against a possible second buyer. Since the creditor and the legal basis are determined, the specificity requirements for the assignment of future claims are satisfied. In practical terms, such an “advance assignment clause” is e.g. B. as follows: "It is agreed that, in the event that the goods are resold, the resulting purchase price claim will be assigned to the first seller." The assignment serves to secure the purchase price claim of the conditional seller, so that the disclosure requirements of a security assignment must be complied with. This also applies to an assignment on account of payment, because this also has security purposes at the same time (unlike when the corresponding part of the claim is assigned instead of payment).
    • With an anticipated constitution of ownership : The (first) seller agrees with the (first) buyer that he will transfer the corresponding part of the purchase money that he will receive in the future from the resale of the goods to the (first) seller. If the (first) buyer has received the money from the second buyer, he is immediately the owner of the money and the intermediary for the (first) seller. In practical terms, such a clause is e.g. B. as follows: "It is agreed that in the event that the goods are resold, that part of the sales proceeds, which corresponds to the amount of the purchase price claim of the first seller, becomes the property of the first seller." It is important that the (first) buyer pays the money separately takes into custody, because otherwise the ownership of money can be lost through mixing .

Individual evidence

  1. ^ Legal information system of the Austrian Federal Chancellery, legal sentence number: RS0107162
  2. ^ Legal information system of the Austrian Federal Chancellery, legal sentence number: RS0020553

literature