The parties agree about the house but not about the price. A third person is to determine it. You are thinking of a non-binding appraisal and want to continue negotiating freely afterwards. The other side already assumes a binding price determination. This difference must be clarified before any commitment and before the valuation commission.
Do not judge the commission only by its title
Our editorial recommendation: First establish whether a professional valuation is intended as information for further talks or whether a price determination supplementing the contract is intended. A document titled “Gutachten” does not answer this question by itself.
Please read the contractual advice, the statements already made and the proposed commission together. Who is to act in what role? Which object and which relevant circumstances are to be taken as the basis? What effect is the result supposed to have? The article does not formulate a price-determination clause.
Know the statutory possibility
§1056 ABGB allows the price to be fixed by a third specified person. If the third person fixes nothing within the agreed period, the purchase contract is considered not concluded. If no period is agreed, the same applies if one party withdraws before the price is fixed. [PREISDRITTER] Whether and until when you can still withdraw in your case therefore depends on whether a deadline has been agreed and on what else you have regulated. Have precisely that checked before commissioning the valuation.
Have definiteness, the temporal sequence and the legal consequences assessed concretely. The statement “we’ll first see what the appraiser thinks” must not remain alongside an already binding other agreement. Precisely this difference is material to your decision.
Do not expect arbitrarily repeatable results
The OGH case-law RS0143695 deals with the effectiveness of the third-party determination upon receipt and the distinction between obvious clerical or calculation errors and more extensive agreed corrections. [PREISWIRKUNG]
The article therefore does not declare any price determination unassailable under all circumstances. It warns against planning a second, more favourable result or a new free negotiation round without examination. The applicable standard of review, possible remedies and concrete effect must be advised on a case-by-case basis.
Connect financing and the unknown amount honestly
Disclose to the bank that the final amount is to be determined later according to the proposed method. An indication of your preferred sum is not automatically financing for any subsequent result.
Ask the contractual advice how your actual financial framework is taken into account in the proposed model. The article asserts neither an automatically applicable price cap nor a later right to exit in the case of an excessive valuation. Such assumptions must not exist only in your private budget.
Fictional case: Two parties envision different next steps
A buyer expects an appraisal and wants to decide afterwards. The seller understands the previously discussed arrangement as a binding price determination. Both use the same expert’s name but mean a different procedure.
Before any further declaration this difference is disclosed and legally clarified. Only then can the appropriate commission be given. The example does not value the house nor an appraisal. It shows that jointly choosing an expert does not yet guarantee a shared understanding of the effect of their work.
Decide on a declared effect
In the end you must understand who fixes the amount, what the fixation relates to and what the result means for your binding. A competent valuation can be useful. Whether it only informs or shapes the purchase price is an additional contractual question.