New case law on value protection clauses

In its recent decision 8 Ob 81/24f, the Supreme Court qualifies a value protection clause as effective. In doing so, it departs from its strict case law on value protection clauses in association proceedings. This can be described as a bombshell with a clear conscience.

The decision concerns a clause that

• provided for an annual increase in remuneration of at least 2%,
• did not exclude the possibility of a remuneration increase within the first two months after conclusion of the contract and
• contained an unspecified replacement index.

According to the Supreme Court's previous case law, such a clause violates the provisions of the Consumer Protection Act. Nevertheless, the Supreme Court held the clause to be valid overall.

The reasoning: only those parts of the contract in question that relate to an independent area of regulation are invalid - the rest of the clause remains valid. The lack of exclusion of an increase within the 2-month period (Section 6 para. 2 no. 4 KSchG) was not detrimental because no value adjustment was actually carried out within the period.

The consideration of index developments prior to the conclusion of the contract (February contract, index basis September, rental start November) was not grossly disadvantageous (§ 879 para. 3 ABGB).

The decision shows once again that the case law on value protection remains in flux - with some surprising twists and turns. The distinction between individual and association proceedings is also becoming increasingly important.