In the event of poor performance of a contract, the Austrian right to disrupt performance provides for the form of warranty as compensation. This is intended to restore the equivalence between performance and consideration in the event of inadequate performance of a contract by one of the parties. If no explicit warranty issues (“Representation and Warranties”) were regulated in the contracts when purchasing a company, the statutory warranty law in accordance with § 922 ff ABGB applies. To what extent is controversial to this day, despite the importance of the question.
In an asset deal , the company is sold per se. It concerns a whole thing according to § 302 ABGB and can therefore be the subject of a sales contract. In contrast, in the case of a share deal, only shares in the company are transferred. On the one hand, this has the advantage that the company shares can be transferred relatively easily and contracts that have been concluded with the company owner continue to exist, but on the other hand, the disadvantage that the buyer takes on the risk of possibly bearing unknown liabilities.
We speak of a defective item if the item owed has neither the properties usually assumed nor the properties specifically stipulated in the contract. Obvious defects, however, are excluded from warranty law. If there is a defect, the primary warranty remedies come , that is
- Improvement or
- Exchange on application.
This is to give the seller the opportunity to restore the contractual status. If he does not comply with this option, the buyer can switch to the secondary warranty remedies. These are
- Price reduction or
The seller is only liable for defects that existed at the time of handover, but this is assumed if the defect occurs within 6 months after handover. The seller can provide evidence to the contrary.
With the asset deal, the unanimous opinion of teaching and jurisprudence assumes that the statutory warranty rules apply. This question looks more difficult with the share deal. The most important factor here is the size of the portion that is transferred. With the purchase of all shares, this is unequivocally affirmed. Furthermore, an application is assumed if the shareholder has the opportunity to exercise minority rights through the shares (“blocking minority”).
The term “deficiency” distinguishes between three forms,
- the lack of shares, and
- the lack of companies in the narrower and broader sense.
A shortage of shares, which only occurs in a share deal, is, for example, the sale of someone else’s share. A company deficiency in the narrower sense would be, for example: the bad reputation of a company or the lack of profitability. A corporate deficiency in the broader sense is present, for example, in the following cases
- Defects due to incorrect annual financial statements or
- Defects due to incorrect contractual relationships.
In the case of the latter, it must be examined whether such a deficiency in a single thing triggers a deficiency in the entire company.
The usually assumed characteristics of a company also cause problems again and again. Here, the opinions in the teaching differ significantly in some cases. If one part assumes that a company does not have any normally required properties, the other part sees the customary use of the company as normally required properties.
As part of a due diligence, the buyer or an expert entrusted by him is given the opportunity to inspect the business books, contracts, etc. As a result, defects that can be identified with due diligence become evident and can therefore no longer be asserted within the scope of the guarantee.