Law of obligations (Austria)
The law of obligations is the part of private law that regulates obligations, i.e. deals with "personal property rights by virtue of which one person is linked to another for a service" (§ 859 ABGB ).
In Austria, the central provisions of the law of obligations are in the second section of the second part (§§ 859 ff.) And in the third part (§§ 1342 ff.) Of the ABGB . Other important law of obligations are the Consumer Protection Act (KSchG), the Railway and Motor Vehicle Liability Act ( EKHG), the Product Liability Act (PHG), the Employee Liability Act (DHG) and the Tenancy Law (MRG).
Structure of the law of obligations
The ABGB, the structure of which follows the institutional system , speaks of "personal property rights" in its second section of the second part of the law of obligations (as opposed to the rights of property in rem) and also regulates further contractual obligations in the third part .
In today's Austrian jurisprudence, the law of obligations is classified as follows:
- general part
- Contractual obligations
- Statutory Obligations
The general part of the law of obligations is contained in the ABGB in the 17th main part (§§ 859-937) of the second part as well as in the 1st , 2nd and 3rd main part of the third part , i.e. in §§ 1342-1450.
The general part of the law of obligations includes norms that apply in principle to all obligations.
- General (main and secondary duties, duty and obligation , target and continuing obligations , guilt and liability)
- Establishment of contractual obligations ( reasons for origin, claims , pre-contractual obligations, ancillary agreements such as the contractual penalty )
- Content of an obligation (type, time and place of performance, performance step by step)
- Service disruptions (subsequent impossibility, delay , warranty , reduction of more than half ),
- Loss of debt ( performance , deposit , performance in lieu of payment , set-off , association , waiver , lapse of time , termination , death, bankruptcy )
- Changes in liabilities ( novation , change of debt , settlement , acknowledgment , assignment , instruction , assumption of debt , assumption of contract )
- Participation of third parties in the contractual relationship or majority of entitled and obligated parties (majority and creditors / debtors, in particular solidarity debt, contract in favor of third parties, surety , guarantee contract , instruction )
The aforementioned performance disruptions are of greater practical relevance, and here again the warranty law , which was partially amended in 2001. Among the reasons for terminating an obligation, particular attention should be given to the set-off , which characterizes the current account in other areas of law such as commercial law . When it comes to the reasons for changing obligations, assignment, with all its manifestations such as collection and factoring, has a prominent position. When third parties are involved in the contractual relationship, the guarantee with its consumer law restrictions, the guarantee contract in the form of a manufacturer's guarantee as a supplement to the guarantee and the instruction that z. B. appears as an "account transfer" or in the right to change .
The special part deals with the individual types of contractual obligations . A distinction must be made between contractual and legal obligations :
The legislature has comprehensively regulated the most important contracts. The ABGB lists:
- Custody contract
- Loan agreement
- Loan agreement
- Authorization contract (see: Order )
- Barter agreement
- Purchase contract
- Lease agreement (see: Rent , Lease )
- Service contract
- Work contract
- Publishing contract
- Luck contracts (see: Bet )
Statutory obligations arise without a legal transaction between the parties based on actual conditions. Legal obligations exist in / with:
No mandatory type of contract
Unlike property law , the law of obligations is not subject to any statutory type compulsory , so there is no numerus clausus of permissible legal transactions (although the contracting parties must of course conclude a contract in order to bring about the corresponding legal consequences). In any case, any debt content can be agreed and new types of contracts can also be created, provided that the agreement is in accordance with the legal system , e.g. does not violate morality (nullity due to immorality ). In the context of the law of obligations, there is also mandatory law, such as formal requirements or consumer protection standards.
- Silvia Dullinger: Civil Law II - Law of Obligations General Part . 6th edition. Verlag Österreich, Vienna 2017, ISBN 978-3-7046-7709-9 .
- Christian Rabl, Andreas Riedler : Civil Law III - Law of Obligations Special Part . 6th edition. Verlag Österreich, Vienna 2017, ISBN 978-3-7046-7799-0 .