Determination of an Obligation by a Third Party and "Apparent Inequity"

On the Influence of the German BGB on Austria


  • Stefan Potschka



German BGB, Civil Law, Determination of Price, Expert Opinion, Apparent Inequity


Agreements according to which the parties delegate the determination of a contractual obligation to a third person who is then to complement the contract are highly significant in legal practice. Nevertheless, relevant norms are rare in Austrian law. The ABGB only contains §§ 1056, 1060, which, however, only apply to the determination of a purchase price by a third party. In contrast, the German Civil Code, with §§ 315 to 319 BGB, contains norms that deal with the determination of performance by a third party as well as by a party and apply equally to all types of contracts. In order to close the gaps in the ABGB, Austrian case law and doctrine therefore largely adopt German law. This article subjects the material reception of BGB law to a critical appraisal.