Error (ABGB)

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There is an error in the general doctrine of civil law in Austria if a contracting party has a wrong idea about the content of a declaration of intent made by the same or about the contracting party and its essential characteristics. A distinction is made between essential and insignificant errors.

Material errors (§ 871 ABGB)

A material error exists if there is a mistake about the main thing or an essential quality of the declaration of intent, i.e. if the contract would not have been concluded at all without the error. The presence enables the contestation and elimination of the entire contract if one of the following conditions applies:

  • the error was caused by the other contracting party
  • the other contracting party should have noticed the error from the circumstances (e.g. the seller may notice from a disproportionately high purchase price that the buyer is wrong about the true value of an item.)
  • the erring party informed the other of its error in good time (in particular before the contractual partner acted in reliance on the declaration).

Insignificant errors (§ 872 ABGB)

If there is an insignificant error, that is, if the contract had also been concluded with knowledge of the error, only in a different form, the contract can be corrected. This includes, in particular, a price reduction or an adjustment of the conditions, as the ABGB requires appropriate remuneration for the misled.

Error of explanation, error of business and error of motivation

In the case law, a distinction is also made between error of explanation, business error and error of motive. This distinction is of subordinate importance for the ABGB.

Error of explanation

There is an explanatory error when the person making the declaration erroneously explains something other than what he wanted to explain or he does not even know that he is explaining something.
There are several possible cases:

  • The person explaining explains something, even though he did not want to make an explanation (explanation without an awareness of the explanation).
  • Errors in explaining (e.g .: the declaring person promises or makes a mistake)
  • Error in submission
  • Error about the meaning of the explanation

The “ falsa demonstratio ” is not a mistake of explanation, indeed no error at all .

Business error

A business error is present if there is a mistake about the content of the legal transaction itself or about the business partner, for example if the buyer purchases a picture in the conviction that it is an original, but it is not.

Motive error

The motive error asks about the motive why the person explaining has made a statement at all. This motivation has nothing to do with the content of the declaration and is therefore outside of the business content. The following cases also belong to the motivational errors:

  • Calculation error
  • Right (follow) error (not to be confused with the legal error outside of legal business theory)
  • Error of value
  • Error about the future

Since the motive error is part of the risk sphere of the person making the declaration, a challenge is only possible in exceptional cases.
In fact:

  • if the contractual partner has cunningly brought it about ( § 870 ABGB )
  • for free transactions ( § 901 sentence 3 ABGB)
  • in the case of wills
  • if the motive has been made a condition by the parties, so that there is a business error (§ 901 ABGB).

Individual evidence

  1. ^ Online textbook on civil law, Section 5, Chapter II, 2nd minor error, accessed March 29, 2012
  2. ^ RIS legal principle

literature