For many groups of people, the current corona pandemic has become a serious burden in both health and economic terms. This is particularly noticeable in companies and restaurants, especially with regard to the rent to be paid, since the exit restriction imposed by the federal government means that customers and thus also the necessary turnover are absent.
But despite a lack of customers and falling sales, according to the General Civil Code (ABGB) in times like these, the rent or lease interest for the premises in question does not have to be paid. For this purpose, § 1104 ABGB represents an exception to the risk bearing ordered by § 1096 ABGB. Because according to § 1096 ABGB, the owner of the inventory bears the obligation to maintain the existing item, but according to the HL of § 1104 ABGB this principle breaks, insofar as the existing item is ” due to extraordinary coincidences , when fire, war or epidemic […] cannot be used or used at all, the lessor is not obliged to restore it, but no rent or lease is to be paid either. “As a consequence of the lack of a restoration obligation on the part of the lessor, the tenant (i.e. the entrepreneur) does not have to pay the rent or lease interest in return.
Specifically, there must be a circumstance that can be qualified as an “extraordinary coincidence”. The list in § 1104 ABGB is not an exhaustive, ie not a final, list. Extraordinary coincidences are therefore those circumstances which, on the one hand, affect a larger group of people and, on the other hand, are to be classified as force majeure. Current case law speaks of force majeure if there are elementary circumstances which, due to their size and incomprehensibility, as well as their indefiniteness, are beyond human control, since human intervention cannot be expected. With regard to the spread of the coronavirus, there is no doubt that this is the case. The intention pursued by the legislature with such a regulation is,
As a consequence of § 1104 ABGB, the lessee of an existing property can choose between withdrawing from the contract and an exemption from interest or interest reduction. However, an interest reduction or exemption is excluded if the lessee accepts the above-mentioned circumstances that prevent the use of the property. Therefore, there is no / reduction in the rent if the use of the property was not taken into account when the contract was concluded.
