AUSTRIA: Two interesting case law on commercial agency.

Gustav BREITER | AUSTRIA | 2012-01-17


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Book extracts and limitation period (Austrian Supreme Court decision 8 ObA 22/11k).

The claiming commercial agent sued the principal with lawsuit as of December 24, 2008. Besides other claims, he also claimed for book extracts for the period January 1 until December 24, 2005. Regarding the limitation period of three years under art 18 Austrian Act on Agencies (Handelsvertretergesetz – HvertrG 1993), it was in dispute if this period was already time-barred.

Concerning commission claims, art 18 par 2 applies whereby the limitation period begins with the end of the calendar year in which the principal included the claims in question in his statement of account. In case the claim was not included in such a statement, the limitation period begins with the end of the agency contract.

Concerning book extracts, there was only jurisdiction on labor law stating that the limitation period begins with the possibility for the employee to ask for such book extracts (9 ObA 323/97h). According to Austrian literature, this jurisprudence should also be applied in agency cases. In such case the claim in question would have been time-barred, because the agent has been able to ask for book extracts during January 1 to December 24, 2005 so the claim as of December 24, 2008 would be, in this regard, time-barred.

But, the High Court refused this argumentation. The commission claim falls under the same limitation period as the claim for book extracts (4 Ob 76/77). This means also a coherent beginning of the limitation period according to art 18 par 2. In the result, the limitation period was running since January 2006 and ended at December 31, 2008. The claim was in time also concerning book extracts for all business cases in 2005 even if they were included in the principal´s statements sent during 2005.

Beginning of limitation period: claims included in the sense of art 18 par 2 ( 8 ObA 62/10s).

As shown above, the beginning of the limitation period depends on the fact if the respective commission claim was included in the statement or not. If yes, the limitation period begins with the end of the respective calendar year. If not, it begins with the end of the calendar year in which the agency contract ended – an important difference.

In the case at hand, the principal´s statement submitted in summer of 2002 contained the ‘bonus 2001 of € 6.169,53’. The Supreme Court held such an information sufficient for the beginning of the limitation period as the agent is able to check potential further claims with this information. Contrary to Austrian literature, it is not necessary in this regard that the statement is also correct. Concerning the beginning of the limitation period, it is sufficient that the claim is determined with a concrete amount and it is attributable to a period. With such a detailed information, it is up to the agent to claim for a further amount or to ask for further information. Therefore, the limitation period begins with the end of the year in which the principal submitted the respective statement.

Comment: the High Court already stated in JBl 1998, 191 that the limitation period is not subject to the agent´s knowledge of his claim. It is relevant if the agent can reasonably be expected to ask for further information or even claim for it. The High Court mentioned the possibility according to art 18 par 3 to claim a higher amount from the principal. Unless the principal did not give an answer the statue of limitation is suspended.

In practice, the agent should ask for further information in due time. In case of a negative answer, he has to timely claim for book extracts before the court to avoid limitation of his claims.

Gustav Breiter, agency & distribution country expert for Austria.

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