QUESTIONS

TRACING THE BORDERLINES

Unlike in many other European legal systems, contractual and tortious liability are jointly regulated under the same set of provisions in Austrian law (§1293 ff Allgemeines bürgerliches Gesetzbuch [Austrian Civil Code, ABGB]). This is in line with the Austrian point of view that basic problems such as causation concern contractual and tortious liability alike. Accordingly, §1295 para 1 ABGB stipulates that everyone is entitled to seek compensation from the injuring party for culpably inflicted damage and emphasises that ‘the damage may have been caused by the breach of a contractual duty or independently of any contract’.

Nonetheless, there are significant differences between the two forms of liability. Firstly, pure economic loss is, in principle, not recoverable under tort law, while it is generally compensable under contract law. Secondly, in tort law, the plaintiff has to prove the tortfeasor's fault, whereas §1298 ABGB provides for a reversal of the burden of proof in the case of contractual liability: the defendant must prove that he was not at fault in relation to the breach of the obligation. Thirdly, in the field of tort, vicarious liability is confined to instances where the principal employs incapable or knowingly dangerous auxiliaries (§1315 ABGB), whereas under contract law, the principal has comprehensive vicarious liability for negligent conduct on the part of auxiliaries he deploys to fulfil his contractual obligations (§1313a ABGB). Other distinctions are considered under II below.

Despite these differences, contractual and tortious liability are not considered two strictly separate areas. In Austrian law, an interim area is acknowledged, in which one has to determine whether to apply contractual or tortious provisions in order to reach an appropriate result. Such interim legal areas arise, for example, in the case of culpa in contrahendo and with regard to the liability of experts towards third parties based on objective legal duties of care.

MAIN DIFFERENCES BETWEEN TORTIOUS AND CONTRACTUAL LIABILITY

A. DIFFERENCES AS REGARDS THE FOUNDATIONS OF LIABILITY

Role of Intention

While the focus of this report is on the main differences between liability in tort and contract, insofar as intention is concerned, the position under Austrian law is very much alike.