Civil law principle of certainty (Austria)

The principle of certainty in Austrian civil law stipulates that declarations, objects, services, laws, etc. must be described with sufficient accuracy and is based on several provisions in various laws.

civil right

Among other things on § 869 ABGB : “ The consent to a contract must be declared freely, seriously, clearly and understandably. Is the explanation incomprehensible; quite indefinite; or the acceptance takes place under different conditions than under which the promise was made; no contract is created. Anyone who makes use of indistinct expressions or undertakes a sham act in order to benefit another is satisfaction. "

The certainty also refers to the object ( thing or service ) not just the consent to a contract. The object or the service must be designated in such a way that the contract itself shows what the basis of the contract is; See also § 1054 ABGB on the specificity of the purchase object and § 1056 ff ABGB on the purchase price. The consent (declaration) in the contract must reveal the essential legal consequences that the declaring party wants to achieve. This applies in particular to the essential parts of the contract ( Essentialia negotii ), which cannot be replaced by general descriptions. See also § 936 ABGB for the preliminary contract.

Example: The promise to owe “seven small Persian carpets” is too vague because of the possible differences in quality in (Persian) carpets. In property law , certainty is also referred to as the “specialty principle”.

Inheritance law

In inheritance law, too, the true will of the testator ( testator ) must be determined (according to § 565 ABGB): “ The will of the testator must be determined, not by simply affirming a proposal made to him; it must be explained in a state of complete prudence, with deliberation and seriousness, free from coercion, deceit, and essential error. "

Rental and lease agreements

Likewise, in the case of rent or lease, the remuneration ( inventory interest ) must be determinable (Section 1092 ABGB).

Employment Law

In labor law, too, which is based on civil law , the concept of certainty is to be applied to the employment relationship, although there is greater leeway here (Section 869; Section 1153 second sentence ABGB).

literature

Andreas Mair: The civil law requirement of certainty in the context of employment contracts, legal training and practical preparation, p. 227 ff, ISSN 1022-9426 .

Individual evidence

↑ Heading to § 869 ABGB: " 2) True consent "
↑ The determinable purchase price is not an indefinite purchase price - hype on ABGB ³ , § 1054, margin no. 10. According to § 869, second sentence, an indefinite declaration does not create a contract.
↑ 4 Ob 116/01; 7 Ob 514/94; JBl 2002, 241; Österreichische Notariatszeitung (NZ) 1994, 231.
↑ Rummel commentary on ABGB ³ , § 869, margin no. 5. Therefore, the declaration need not cover all possible legal consequences.
↑ EvBl 1961/196.

[1] Heading to § 869 ABGB: " 2) True consent "

[2] The determinable purchase price is not an indefinite purchase price - hype on ABGB ³ , § 1054, margin no. 10. According to § 869, second sentence, an indefinite declaration does not create a contract.

[3] 4 Ob 116/01; 7 Ob 514/94; JBl 2002, 241; Österreichische Notariatszeitung (NZ) 1994, 231.

[4] Rummel commentary on ABGB ³ , § 869, margin no. 5. Therefore, the declaration need not cover all possible legal consequences.

[5] EvBl 1961/196.