No bona fide consumption of additional remittance made in error of the employer (OGH 15.12.2021, 9 ObA 103/231v)

Created by Thomas Hörantner, LL.M. |
Employment Law for Companies , Civil Law


The defendant employee (AN) was employed by the plaintiff employer (AG) from 2006 to 2017. In 2016 she received a monthly salary of EUR 1,526.65 net and in 2015 a salary of EUR 1,454.63 net.

In addition to her salary payments, the AN was transferred an amount totaling EUR 11,425.00 from the account of the AG six times in the period from March 19, 2015 to April 29, 2016. The signature on the payment slips used for the transfers came from the AG in each case. The accountant of the AG had payment order slips signed by him in blank with which she could transfer the transfers in the absence of the AG.

After the additional transfers to the Contractor became public, no agreement on repayment was reached for the time being, so that the employer handed over a repayment plan to the employee on February 9, 2017. On February 10, 2017, the employee declared her cancellation in written form.

The AG filed a case to reclaim the unjustified payments made from his account. The AG objected (among other things) that she had not noticed an overpayment because her account had always been in minus anyway. Therefore, the money transferred had been consumed in good faith.

The court of first instance found the claim to be justified at EUR 10,530.58. The Court of Appeal, however, upheld the appeal filed by the AN and dismissed the lawsuit in its entirety.

Legal Background

According to Section 1431 of the Austrian Civil Code, a person who mistakenly pays a non-debt may reclaim what has been paid by way of restitution. The precondition is the existence of a reversible, unjustified transfer of assets.

However, according to previous decisions of the highest court, recovery is not possible if the Contractor has received and used payments in good faith.

Decision of the OGH (9ObA103/21v)

The OGH stated that the principles of Section 1431 of the Austrian Civil Code (ABGB) also apply to labor law. Therefore, if payments are made by mistake, they can be reclaimed by the employer. Only in the case of honest consumption by the employee, a reclaim by the employer is excluded.

Good faith is no longer present not only in the case of conspicuous carelessness on the part of the recipient, but also in the case of doubts in an objective assessment of the legitimacy of the amount paid out to him.

Since the payments made were not a minor overpayment (and the salary payments were made in the same amount), the employee should at least have had doubts about the legitimacy of the payments made when viewed objectively. In the opinion of the OGH, the overdraft of the account did not make any difference, since a minus on the account does not change the noticeability of such transfers on the account.