Impossibility (ABGB)

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In Austrian law of obligations , one speaks of impossibility if the debtor cannot provide a service for factual and / or legal reasons. According to the legal principle impossibilium nulla est obligatio , the impossibility also expires the obligation to perform. Austrian law still distinguishes between initial and subsequent impossibility. According to § § 878  ff. ABGB , contracts aimed at an initially impossible performance are void.

Cases of subsequent impossibility

In cases of subsequent impossibility, a permanent impediment to performance occurs between the conclusion and fulfillment of the contract:

  • the thing to be performed gets out of the custody of the debtor through no fault of his own, e.g. B. by theft
  • Service provision actually becomes impossible
  • a subsequent statutory prohibition will be issued
  • It is predominantly assumed that unreasonableness also leads to impossibility
  • it is controversial whether the unaffordable performance should also be captured

The impossibility usually only occurs in the case of a species guilt , since the species does not perish ( genus non perit ). Concentration can occur in the case of a generic debt, generally at the time of the stipulated handover. In contrast to default, the impediment to performance must also be permanent.

fault

If the fault lies with the debtor or if the impossibility occurs accidentally during the debtor's delay, the obligee according to § § 920 f. ABGB a right to choose between the difference claim (withdrawal without setting a grace period and replacement of the interest in performance, i.e. the difference between lost performance and consideration) and the exchange claim (the obligee provides his own performance and receives compensation for the lost performance)

If the obligee is responsible for the downfall or if this occurs accidentally during the delay in acceptance, he must continue to provide his performance without being entitled to the consideration.

If the impossibility is based on mere coincidence, the performance obligations according to § 1447 ABGB expire . The representative commodum may have to be surrendered in return for the agreed consideration.