What Happened?
In 1997, the deceased and his wife transferred a viticulture business to one of their sons, the defendant. The transfer was made under a contract that required the defendant to provide several counter-performances. These included assuming loan obligations, granting the transferors a right of use for a residential unit, annual wine deliveries, and monthly maintenance payments. At the time of transfer, the market value of the business was approximately EUR 573,810, while the counter-performances were estimated at EUR 124,500.
The plaintiffs, the deceased’s two other children, argued that the transfer constituted a “mixed donation” since there was a significant imbalance between the value of the transferred business and the agreed counter-performances. They therefore demanded that this asset be added to the estate and that their compulsory portion claims be adjusted accordingly.
The court of first instance dismissed the claim, finding no sufficient evidence of the deceased’s intention to gift. The appellate court upheld this decision, stating that the burden of proof for establishing a donative intent rested entirely with the plaintiffs. The plaintiffs subsequently filed an extraordinary appeal with the Austrian Supreme Court (OGH).
How Did the Supreme Court Rule?
The Austrian Supreme Court granted the plaintiffs’ appeal and remanded the case to the court of first instance for reconsideration. The OGH clarified that in cases where there is an objectively extreme disparity between performance and counter-performance, an intention to gift can be presumed unless other circumstances indicate otherwise.
The OGH emphasized that, in compulsory portion law, the inclusion of transfers in the estate should not fail solely due to formal criteria; rather, an economic perspective must also be taken into account. The court stated that determining donative intent requires a detailed analysis of the circumstances of the individual case. A significant imbalance between performance and counter-performance could serve as an indication of a gratuitous transfer. At the same time, however, the defendant must have the opportunity to refute this appearance with counter-evidence. A simple reversal of the burden of proof in favor of the plaintiffs was not justified.
Furthermore, the OGH ruled that the residual provision under § 781(2)(6) ABGB—which covers gratuitous transfers without donative intent—does not apply if the transfer already meets both the objective and subjective requirements of a donation under § 781(1) ABGB.
Additionally, the OGH underscored that assessing donative intent requires a comprehensive examination of the facts. This must include, in particular, the relationship between the economic values of performance and counter-performance, as well as the intentions of the contracting parties. Due to insufficient findings by the lower courts, the proceedings were remanded to the court of first instance to clarify these unresolved issues.
In summary, the OGH held that a “mixed donation” under § 781 ABGB can exist if there is a stark imbalance between the transferred assets and the counter-performances. Whether this applies in the present case remains for the court of first instance to decide.
(Decision 2 Ob 248/23v of November 19, 2024)
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