LEXIKON

In its decision of November 26, 2025, 3 Ob 183/25w, (www.ris.bka.gv.at/jus), the Austrian Supreme Court addressed the admissibility of a contractually agreed liability waiver. The case involved the sale of young plants that were found to be infested with a fungus.

The Supreme Court held that, between two business entities, the exclusion of liability for (simple) gross negligence is possible under certain circumstances, but not the exclusion of so-called flagrant gross negligence. Flagrant gross negligence would exist if the seller had been aware of the fungal infestation prior to delivery of the young plants and had possibly sorted out individual plants for that reason. Since the buyer was unaware of the fungal infestation, but the defect would have been detectable had a more thorough inspection been conducted (which was not), the case involved merely (simple) gross negligence.

As a result, it can be concluded that the liability disclaimer was valid and, since the damage was classified as consequential damage resulting from the defect, the buyer was not liable.