What is understood by the “statutory guarantee”, and what legal consequence are to be borne in mind?

The statutory guarantee is liability on the part of the obligor, independently of fault, for defects that already exist upon handing over the item.

A defect is a deviation from what is contractually owed. Hence, the standard for the existence of a defect is always the contract. The obligor provides a guarantee that the item has the stipulated or usually presumed properties (Sec. 922(1) Austrian Civil Code (ABGB)).

If the defect becomes apparent within six months of the item being handed over, it is essentially presumed that it already existed as at the date of handing over the item. Accordingly, only once six months have expired is the purchaser obliged to prove that the defect already existed as at the date of handing over the item, at least on the merits of the case.

The guarantee system has a tiered design.

  • The creditor can, primarily, only demand exchange or improvement of the item (repair). This is supposed to give the obligor a second opportunity to produce the contractually agreed state. The purchaser has the option of choosing between exchange and improvement. The remedy chosen may, however, not be disproportionate (unreasonable) for the obligor (for example, it is not possible to exchange an item if the defect can be remedied by means of a minimal repair).
  • On a second level, the obligee is entitled to claim a reduction in the price or rescission of the contract. These second-level warranty remedies do, however, only come into consideration if it is not possible to remedy the defect or it would be impractical or unreasonable for the obligee. This option is, however, available to the purchaser if the seller refuses to remedy the defect or the latter is unreasonably delayed by it. The obligee is basically, also in this case, permitted to choose between a reduction in the price and rescission of the contract. Should the defect only be minor, only a reduction in the price is available to it.

Your Attorneys in Austria, Law Experts Attorneys Austria - We represent your interests throughout Austria.