13.11.2017
In Austrian contract law, the principle applies that a legally valid contract cannot be terminated by one party without reason (pacta sunt servanda). However, for a work contract, the customer can cancel the work contract at any time, except in the case of an expressly agreed irrevocability.
The reason for this is that the client generally has no obligation to accept the work. If the client refuses to accept the work, he is in default of acceptance. The contractor cannot sue the client for acceptance of the work. His contractually protected interest is in receiving the remuneration for the work and his interests are therefore protected even without an obligation to accept the work. An exception to this principle exists if the contractor has an interest in accepting the work that goes beyond receiving the consideration and this interest has also found its way into the contractual relationship.
Financially, the contractor should be placed in the same position as he would have been financially when the work was completed. He is therefore entitled to the pure profit. However, the contractor must be credited with everything that he has saved by not carrying out the work, acquired by using it for other purposes, or intentionally neglected to acquire. This includes in particular saved work materials and orders that the contractor would not have been able to take on due to full utilization of his performance capacity without the failure to perform the work.
Contractors often try to contractually exclude the right to remuneration reduced to the pure earnings. According to Section 879 of the Austrian Civil Code, such an agreement is immoral and therefore void. The reason for this is that the contractor would be at the mercy of the contractor's arbitrary will, as the latter could deprive him of the right to remuneration without reason. This is an assertable nullity that the contractor must invoke in the process.
In summary, it is stated that the cancellation of a work is generally legal, as it has no impact on the contractor's profit. Rather, he is placed in the same position as he would have been in if the work had been completed. When calculating the remuneration, the contractor must take into account everything that he has saved by not carrying out the work, acquired through other use, or intentionally neglected to acquire. A contractual exclusion of this reduced remuneration is immoral.