Áustria: The law of general contract terms in Austria
| Autor | Wolfgang Schumacher |
| Cargo | Dozent at the University of Salzburg |
| Páginas | 89-101 |
89
RPDC, Dezembro de 2013, n.º 76
RPDC
Revista Portuguesa
de Direito do Consumo
ÁUSTRIA
THE LAW OF GENERAL CONTRACT TERMS
IN AUSTRIA
Wolfgang SCHUMACHER
Dozent at the University of Salzburg
I. Introduction
As in other industrialized countries, in Austria, too, standard form contracts (general
contract terms) have been developed for the economically more important mass-market-
transactions, which the supplier drafts in advance for multiple transactions of this type.
While it was always recognized, that, in principle, these standard-form contracts are a
reasonable method of rationalizing mass-market-transactions, particularly with regard to
the ever increasing types of contracts which are not adequately regulated by law, the need
for control became also evident. In general, Austrian courts very soon recognized, that
the development of standard-form-contracts has led to a characteristic interference with
the freedom of contract (especially the freedom to determine the tenor of the contract),
so far as the other party, especially the consumer, is concerned. Therefore, the courts
did not hesitate to apply section 879 § 1 of the Austrian Civil Code also to unfair clauses
in standard-form contracts. The cited provision of the code states that “a contract which
violates a legal prohibition or public morality is null and void”. The courts could apply
this provision, because there was never any debate, that the “public morality”-clause had
to be interpreted also in the light of fundamental principles of private law and did not
only comprise the requirements of a social-ethic minimum. One of these fundamental
principles is the idea, that the positions of contracting parties should be equivalent, at
least to a certain degree. At this point, mention should be made of the fact, that the
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