CONSTRUCTION: Identification requirement for workers? – General contractors are liable if their subcontractors employ workers illegally
The Anti-Abuse Act, introduced in 1996, imposes strict control obligations on construction companies, mainly to counteract the illegal employment of workers on construction sites.
Under this law, general contractors are liable if their subcontractors employ workers illegally. This liability does not even require the general contractor to be at fault! To make these inspection obligations easier and more time-efficient, many construction companies have voluntarily introduced mandatory ID for all workers on their construction sites.
CONSTRUCTION: Building without a permit – No start of construction before the permits
It is strongly advised not to start construction before the necessary, legally binding building permits have been obtained.
The Higher Administrative Court (VwGH) had to decide on a case in which the developers insisted on an early start to construction, despite knowing that the construction would fall below the required minimum distances. The developers relied on previously made loose promises by the affected neighbor not to raise any objections and instructed the construction company to carry out the work.
CONSTRUCTION: Bank guarantees – insurance retention guarantees – retentions serve to secure possible warranty claims
Typically, retention deposits are agreed upon for construction projects.
These serve to secure the client against potential warranty claims. They entitle the client to retain a portion of the work fee for a limited period and to indemnify themselves from this amount in the event of defects being discovered due to the contractor's unwillingness to remedy the defect. The retention fee is typically 2.5% of the work fee and can be retained until the end of the warranty period. To ensure the contractor receives their full work fee immediately upon completion of the work, depending on the agreement, it is usually possible to replace this retention fee with a bank guarantee. Such guarantees are issued by banks or insurance companies.
MEDICAL INFORMATION AND DOCUMENTATION OBLIGATION: The type and severity of the illness as well as possible dangers and harmful consequences must be explained.
If a patient is treated by a doctor or a member of a nursing profession, a treatment contract is concluded - except in emergencies. This includes the obligation to provide treatment and the obligation to pay the treatment fee.
However, it also includes secondary obligations, particularly regarding information and documentation. According to case law, medical information should enable the patient to understand the implications of their decision.
CONSTRUCTION: Loss of the right of retention? – Information on clarifying defects
Suppose the contractor does not carry out his work in accordance with the contract and defects arise. In this case, it seems clear that the client can withhold his performance until the work is remedied.
CONSTRUCTION: Apparent authority of the architect
If an architect is entrusted with the construction management, he is usually also responsible for finding the necessary professionals to carry out the work and concluding the relevant work contracts with them.
In this case, the architect's intention is usually not to become a contractual partner of the professionals themselves; rather, they conclude the work contracts in the name and for the account of the client. Please note: This does not require an explicit written power of attorney. Section 1029 of the Austrian Civil Code (ABGB) stipulates a so-called apparent authority for such cases.
KLEINE ZEITUNG: Patent dispute involves billions
The big brother of trademark disputes is the clash over patents. IT giants Samsung and Apple currently dominate this segment, battling each other in ten countries and 50 court cases – in a single case, in San Jose, the claim for damages amounts to two billion euros. In the mobile phone industry in particular, disputes over patents and their alleged infringement have been raging for years.
Protect yourself if you can
2012.08.09 TRADEMARK PROTECTION IS CAUSING INCREASINGLY EXCITEMENT
COLUMN: The insolvent company
In the last issue of Am Puls, the situation of the contractual partner of an insolvent company was discussed here. However, the 2010 amendment to the insolvency law has also significantly changed the legal situation of the insolvent company itself. The company seeking restructuring now has the main option of "restructuring proceedings". This instrument corresponds to the - former and now abolished - compulsory settlement, with the following notable changes:
SPECIAL ARTICLE: Liability and liability avoidance of the GmbH managing director in the event of (imminent) insolvency
The managing director of the GmbH[1] bears comprehensive responsibility in the event of a corporate crisis, which is reflected in concrete tasks, sets out an obligation to restructure the company and the culpable violation of which can result in liability claims.[2]
It is important to note that liability can affect not only the formal managing director, but also the "de facto managing director." A de facto managing director is a natural person who actually manages the company without having been formally appointed as managing director.