Reader question: Which questions do I need to clarify before signing if the Viennese tenancy contract names German law and a German court?
The draft for your permanently rented Vienna flat states that German law applies; furthermore, only German courts are to be competent. The landlord lives in Germany. Before signing you need two separate answers: which substantive contract law is to be applied, and in which state a tenancy dispute will be conducted?
Combine the contract with the actual occupancy
Mark both clauses in the complete draft. Note the flat’s location, the purpose of the contract, the planned duration and the parties’ actual residence or habitual residence details. Add whether the draft refers to earlier agreements. The contract language or a German bank account alone do not resolve the two questions.
Have the wording checked before you commit. For older contracts the temporal application must also be clarified: Rome I applies according to Article 28 to contracts concluded on or after 17 December 2009. [RomI]
Classify the choice of law concretely
Article 3 Rome I in principle allows a choice of law. Without a choice of law Article 4(1)(c) generally connects immovable property leases to the state where the property is situated; letter (d) contains a special exception for certain short private lettings. [RomI] The Viennese flat’s location is therefore an important connecting factor. An existing clause must not, however, be deleted unread nor treated as a complete exclusion of Austrian protective provisions.
Ask explicitly which mandatory provisions remain relevant despite the clause. Article 3(3) protects non-derogable rules where all other elements are located in another state; Article 9 deals with overriding mandatory provisions. Which specific Austrian provision falls under that must be examined separately. [RomI]
Do not replace consumer protection with a blanket country rule
A privately used flat does not automatically mean that the general consumer contract rule in Article 6 settles the choice of law issue. Article 6(4)(c) contains an exception for immovable property leases; rights of part-time use are dealt with separately there. [RomI] This article concerns ordinary residential tenancies.
Ask the adviser for a reasoned classification of the specific clause and the remaining protective rules. A list of individual German provisions without this preliminary assessment would not constitute a reliable contract evaluation.
Check the forum independently
Article 24(1) Brussels Ia provides for the exclusive jurisdiction of the courts of the place where the property is located for proceedings concerning immovable property leases. For certain temporary private lettings of at most six months there is an additional special jurisdiction. A choice of court agreement does not displace the exclusive jurisdiction under Article 24; Article 25(4) governs this. [BruesselIa]
In the hypothetical case the Vienna flat is occupied on a long-term basis. The client therefore has the German court clause examined independently of the choice of law. That does not amount to a complete decision on any later concrete claim or on the locally competent chamber.
Record the result as a contractual decision
Record which clause will be amended, which legal question remains open and on what basis you assess the contract. Have the final version compared again with the reviewed version. If court mail arrives later, it will be professionally examined immediately regardless of your own assessment of the clause. A doubtful jurisdiction is no reason to ignore ongoing proceedings.