Case

Just as Mr and Mrs Timeless were ready to sign the contract of sale as purchasers, the vendors, Mr and Mrs Careless, found out that the right of way at the bottom of the garden had been varied by permission of the local authority to allow motor vehicles a right of way through the woods. One of the main attractions of the house and garden for Mr and Mrs Timeless was the quiet adjoining woods at the bottom of the garden. Anxious, however, to complete the sale Mr and Mrs Careless omitted to inform Mr and Mrs Timeless of the variation. After moving in Mr and Mrs Timeless complain of the substantial noise caused by vehicles crossing the woods. What remedy, if any, is available against Mr and Mrs Careless?

Discussions

Austria

(i) Mr and Mrs Timeless are entitled to annul the contract of sale for fraudulent misrepresentation in accordance with § 870 ABGB. Four cumulative conditions must be satisfied: (a) one of the parties has made a mistake, (b) there must be fraudulent intent of the non-mistaken party, (c) such intent causes the mistake, and (d) the misleading act is unlawful.

If one of the parties has been fraudulent in order to conclude the contract it is not necessary to differentiate the type of mistake. Both mistakes, as to the content of the contract and as to motive apply. Furthermore, the mistaken party is entitled to annul the contract even if the mistake is non-fundamental.