Surprise decision regarding changing case law

In a recent case before the Supreme Court, the appellant argued that the appeals court had erred by
basing its legal reasoning on Case 1 Ob 209/16s, which had not been published in the online legal
information system until the last day of the hearings at the trial stage. According to the
appellate, because that decision had led to a new interpretation of the ‘disproportionate’ nature
of the repair within the meaning of Section 932(4) of the Civil Code, the appeals court should have
discussed this surprising legal opinion within the context of Section 182a of the Civil Procedural
Code with the appellant. If it had, the appellant could have argued – as an alternative – that it
was willing to exchange the item (despite disproportionate costs). The appellant could also have
argued that the defendant – if asked about it – probably would have ruled out any contribution to
the costs for removal and installation.

According to the Supreme Court, even settled case law can change. The law prevents the retroactive
application only of statutory laws, not court decisions. Therefore, changes in case law also apply
retroactively, as there is no ban on the retroactive application of legal knowledge by the courts.
The interest in maintaining ‘correct’ case law overrides earlier protections afforded to those
applying the law; thus, it is paramount to be prepared for changes in case law.

Case 1 Ob 209/16s was based on the European Court of Justice’s rulings in connected Cases C-65/09
and C-87/09 (Weber and Putz), which ultimately led to a new interpretation of the criteria of what
is ‘disproportionate’ within the meaning of Section 932(4) of the Civil Code. As such, the Supreme
Court held that the application of that case could not be regarded as a substantial legal error in
that regard. Further, Case 1 Ob 209/16s had already been published in the online legal information
system when the appeal was filed. The Supreme Court thus ruled that the courts’ duties under
Section 182 of the Civil Procedure Code do not extend to requiring judges to instruct a party
represented by a lawyer about the legal consequences of the party’s arguments, let alone to advise
that party.

For further information on this topic please contact Klaus Oblin at OBLIN Attorneys at Law by
telephone (+43 1 505 37 05) or email ([email protected]). The OBLIN Attorneys at Law website can
be accessed at www.oblin.at.

 

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AUTHOR
Klaus Oblin