The seller’s side has substantial liabilities. At the same time you learn that the house offered essentially constitutes their entire assets. The statement “there is nothing recorded in the land register” therefore does not answer every buyer’s question. Under particular conditions a personal purchaser liability (Erwerberhaftung) can become relevant. It must be examined as a separate legal task.
Do not treat every house purchase as an assumption of assets
§1409 ABGB governs a statutory accession to debts (Schuldbeitritt) on taking over assets or a business. The provision relates to the specified debts that were known or ought to have been known at the time of handing over, and it contains a limitation of liability. [ERWERBERHAFTUNG]
The OGH also treats, under particular conditions, individual properties or shares as possible cases for corresponding application. Among other things, knowledge of the particular financial situation is significant. [EINZELNE-LIEGENSCHAFT] That does not result in automatic liability of every house buyer for all the seller’s debts.
Present fully any known circumstances from the advice you received
Our editorial recommendation: Compile which specific statements you actually received about the financial position and claims. Keep the available communications with dates. Forward identifiable contradictions instead of omitting them for the sake of an allegedly simpler transaction.
The legal principle RS0125157 requires, in the single-item case described there, knowledge or constructive knowledge of the konkrate creditor claim; it thereby describes the significance of known facts. [KONKRETE-FORDERUNG] A general rumour about financial difficulties and known facts concerning a specific claim are therefore not uncritically the same for the purposes of examination.
A contractual clause does not replace the liability assessment
Perhaps the purchase contract is to state that no third-party debts are being assumed. Such an agreement is not already the complete answer vis-à-vis creditors: §1409(3) treats agreements to the detriment of creditors as ineffective against them. [ERWERBERHAFTUNG]
Therefore first have it examined whether the statutory liability is applicable at all in the particular case. Afterwards, consideration, payments and possible effects must be assessed in the appropriate legal context. This article does not declare either a general purchase price payment or an indemnity from encumbrances to be blanket releases from liability.
Fictive case: The internal agreement is overestimated
A buyer knows of a specific outstanding claim against the seller’s side and has indications that the house is their almost sole asset. Both merely want to record that the seller will pay their debts later themselves. The buyer thereby considers every personal risk to be resolved.
He presents these circumstances for individual examination before becoming bound. The advice must assess the prerequisites, state of knowledge and actual mode of settlement. The example does not establish liability and contains no arrangement intended to exclude creditors’ rights.
Explicitly name related-party transactions
§1409(2) contains a special framework with a rule on the burden of proof for close relatives. [ERWERBERHAFTUNG] Whether you fall under this is not decided here solely by a colloquial family designation. Communicate the actual relationship in the advice.
As a result you need a reasoned classification of the concrete liability fact and its limits. A land register excerpt, an internal debt clause or an attractive price does not replace this classification. The acquisition must thereafter be based on the examined factual situation and not on a blanket reassurance.