Case

Several months ago, Bruno bought a second-hand car from his local garage, who assured him that it was a 1995 model ‘as good as new’. He has now discovered that the car is unroadworthy and the motor needs replacing. What remedy, if any, is available?

Discussions

Austria

Bruno's claims lie in mistake and breach of contract.

(i) Bruno can allege that he made a mistake when concluding the contract, as provided for in § 871 ABGB. As Bruno assumes that the car is capable of being used on the roads and is in good working order for a 1995 model, both of which turn out not to be the case, he has made a mistake; that is a mistake as to the important qualities of the subject matter of the contract. One out of the three conditions stated in § 871 ABGB applies since Bruno's mistake has been caused by the seller's promises.

The right to annul (§ 871 ABGB) or the right to adapt (§ 872 ABGB) is available by considering respectively the importance of the mistake. If Bruno would not have bought the car if he had recognised its defects, namely the poor condition of the car, the mistake is fundamental. The contract can then be judicially annulled in accordance with § 871 ABGB and he is entitled to the reimbursement of the purchase price at the same time as returning the car to the seller in an action under § 877 ABGB (condictio sine causa).