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Published online by Cambridge University Press: 06 August 2009
Case
Emmanuel, a gifted philosophy student but not much of a handyman, bought a computer from a shop specialising in the sale of quality second-hand office equipment. He chose a model that was fairly expensive, but, as he informed the salesman, he recognised the brand and preferred to pay extra as he was acquiring the benefit of a proper maintenance contract. The salesman made no comment. However, when, on encountering various technical difficulties, he applied to the manufacturer for help, he was informed that the maintenance contract had expired before the sale. What remedy, if any, is available?
Discussions
Austria
Emmanuel's reason for buying the fairly expensive computer was in order to have a proper maintenance contract with the manufacturer of a recognised brand mark. Even if Emmanuel had informed the salesman about his motives it is uncertain and questionable whether these motives had been agreed upon by both parties (in the sense of § 901 1st sentence ABGB) as a condition relating to the subject matter of the contract. If not, such motives have no influence on the validity of a legal transaction for payment (§ 901 2nd sentence ABGB). Such an agreement must be made expressly and prevailing scholarly opinion interprets ‘expressly’ in the sense of ‘sufficiently clear and evident’, which can already be assumed under the general legal provisions (compare § 863, § 914 ff. ABGB).
The fact that Emmanuel recognises the brand is very clearly to be seen as a mere motive.
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