Compensation and Warranty Law
In principle, in Austria people bear personal responsibility for costs of any loss or damage that they might incur. Under certain conditions, however, the injured party may have recourse to claim compensation for loss or damage from other parties.
If you find yourself in one of the following or similar situations:
- deficient or incorrect medical treatment (medical malpractice)
- traffic accident
- breach of contract
Do not hesitate to contact me for further information or legal advice.
What does damage mean?
According to the law, damage is any detriment caused to someone's property, rights or person.
What types of damage are there?
Damage claims can be contractual or tortious in nature. While a contractual claim for damages is based on an underlying breach of contract and the tortfeasor has to prove that he is not at fault for the occurrence of the damage, the opposite is true for tortious liability. In this case, there is no legal relationship whatsoever between the damaging and the injured party, which is why the injured party has the burden of proof and must prove that the damaging party was at fault in causing the damage.
Damage can either be of a non-material nature, i.e. it can be caused, for example, by medical malpractice, or it can occur directly to property, i.e. car body damage due to a traffic accident.
Principally, in order to be able to claim damages, the damage or loss must have been caused unlawfully and culpably by the damaging party. In the example of a traffic accident, this is the case if the damaging party drove without the right of way into the path of the injured party and thereby caused an accident.
Warranty means that in the case of a purchase from a dealership, the dealer is liable for ensuring that the goods are free of defects, whereby it is irrelevant whether or not the seller is responsible for the defect. If the goods are defective, the buyer is entitled to improvement (= repair) or replacement, or price reduction, or cancellation of the contract.
(= cancellation and reversal of the contract).
Important: The defect must already have been present when the product was handed over. If the defect is discovered within six months of handover, the legal presumption applies that the defect was already present when the product was handed over. This regulation provides relief for the consumer, because in this case the seller has to prove that he handed over a defect-free product.
Generally, the seller must first be given the opportunity to make good the defect, i.e. by repair or replacement, that is, with another product of equal value. Only if the seller generally refuses to do anything, and neither improvement nor exchange of the goods is possible, does the buyer have the right to demand a price reduction or even the cancellation and unravelling of the contract (money back!).
Note that the warranty concept also exists for work and services warranties as well as internet purchases.
Important: to note that dealers often try to avoid liability by stating that they did not cause the fault or defect in the goods and therefore cannot be liable for the fault-free nature of the products they sell. However, this is wrong!
Warranty is not the same as guarantee. While the warranty has a legal basis from which the company/dealer cannot deviate and thus cannot be contractually waived or limited, the guarantee is a voluntary promise by the dealer to be responsible for a defect for a certain period of time. In most cases, the guarantee is longer than the warranty and is granted by the dealer, especially for expensive products.
What should I do in the event of a defect?
As soon as you notice a defect in the product you have purchased, I would recommend informing the dealer or seller immediately in writing. First, you should demand the repair or replacement of the goods (in the case of so-called off-the-shelf goods). Only if the dealer fails to react within a reasonable period of time (e. g. 14 days) or if the repair or replacement of the goods is not possible, can you demand a price reduction or even withdraw from the contract.
If, despite a written request, you do not receive a satisfactory solution to the problem from the dealer or company, it is advisable to have a letter of demand drawn up by a lawyer. This is usually sufficient and can often prevent a cost-intensive lawsuit.
Traffic law essentially covers all legal regulations that govern road traffic in public spaces. The most important regulations of the road traffic law are regulated in
- the Road Traffic Regulations (StVO)
- the Diving Licence Act (FSG)
- the Motor Vehicle Act (KFG)
Additionally, there are a large number of other laws and ordinances that regulate transport in general, and specifically the transport of goods.
Individuals regularly have dealings with the StVO or FSG, either because the applicable speed limit was not observed or because of alcohol-related driving infringements. It is rare for certain criminal convictions to also result in traffic law sanctions but these can lead, for example, to suspension of the driving licence for a certain period of time. This is not always required, and is sometimes erroneously applied by the authorities.
Due to the large number of decisions issued by the authorities, they are often erroneous and are often dropped if met by legal challenge.
Other Civil Law aspects
I can as a matter of course also offer advice on all other aspects regulated by Civil Law:
- Warranty, liability for defects, product liability, tort law
- Labour and social law matters
- Contracts of all kinds
- Reversing or contesting of legal transactions, contract withdrawal
- Debt collection
- Real estate and tenancy law
- Commercial and Company law
- Procedural law