Withdrawing from a Purchase Offer in Austria: What Damages Are You Really Facing?

The Kaufanbot – purchase offer – is a binding offer by the buyer to acquire a property or apartment on specified terms.

This is where the most common misunderstanding arises. Many buyers sign a Kaufanbot believing they are merely expressing serious interest. In fact, it is a legally binding declaration of intent under the Austrian Civil Code (ABGB). The buyer is bound by the offer for the binding period (Bindungsfrist) stated in it – commonly two to four weeks.

If the seller accepts within that period, the purchase contract is concluded. The formal contract subsequently drawn up by a notary or attorney merely implements that agreement and makes it registrable in the land register.

Practical consequence: a buyer who wants out after acceptance is not withdrawing from an offer – but from a contract that already exists. Legally, that is an entirely different matter, and as a rule considerably more expensive.

Stage 1: Offer made, not yet accepted

As long as the seller has not accepted the offer, the buyer can generally only revoke it if the revocation reaches the seller before or at the same time as the offer itself. In practice this is almost never the case.

Exception: if the offer contains an express reservation of revocation, withdrawal is possible on the terms stated there. Read your offer carefully – such clauses are rarer than many assume, but they do occur.

Stage 2: Right of withdrawal under § 30a KSchG

This is the most important exception in practice. Section 30a of the Austrian Consumer Protection Act grants a right of withdrawal where the following conditions are met:

• The buyer is a consumer (not acting in a business capacity).
• The transaction concerns an apartment, a single-family house, or a plot for building one, intended to meet the urgent housing need of the buyer or a close relative.
• The declaration was made on the same day on which the buyer first viewed the property.
  A real estate agent was involved.

Where these conditions are met, the buyer may withdraw in writing within one week. The period begins when written notice of the right of withdrawal is handed over – if that does not happen, the period is extended considerably, but to no more than one month from the date of the declaration.

This is frequently overlooked: viewings followed by immediate signature – standard practice for properties in high demand – often satisfy the conditions of § 30a KSchG.

Stage 3: Offer accepted – the contract stands

Once the seller has accepted, there is no general right of withdrawal. An exit is then only possible through:

• a mutual rescission agreement with the seller,
• a challenge on grounds of error, fraud or duress (§§ 870 et seq ABGB),
• a warranty claim for concealed defects,
• the occurrence of a condition subsequent agreed in the offer – for example, failure to obtain financing.

The last point is by far the most important lever. A properly drafted financing condition in the purchase offer is the single most effective protection against exactly this situation.

There is no blanket answer. What matters is what the offer says.

Option 1: Forfeit payment (Reugeld) agreed

Where a Reugeld (§ 909 ABGB) has been agreed, the buyer may withdraw against payment of that amount. The Reugeld is therefore the price of exit – further damages are excluded.

In practice, forfeit payments are commonly agreed at five to ten percent of the purchase price. On a purchase price of EUR 400,000 that is EUR 20,000 to EUR 40,000.

The advantage for the buyer is predictability. The amount is fixed, regardless of the loss the seller actually suffers.

Option 2: Contractual penalty (Konventionalstrafe) agreed

A contractual penalty (§ 1336 ABGB) falls due irrespective of actual loss. Unlike a Reugeld, however, it does not permit withdrawal – it penalises it.

Importantly, contractual penalties are subject to judicial reduction. Where the penalty is disproportionate to the seller's actual disadvantage, the court may reduce it. In consumer transactions this power is mandatory and cannot validly be excluded.

The seller may in addition claim loss exceeding the penalty – but only if the offer expressly provides for it.

Option 3: No provision at all – statutory damages

Where the purchase offer contains no provision on Reugeld or contractual penalty, general damages law applies. The seller must then plead and prove the loss specifically.
Recoverable items include, in particular:

• Wasted expenditure – contract drafting costs, surveys, energy performance certificates
• Costs of re-marketing – advertising, further agency services
• A shortfall in price if the property can subsequently only be sold for less
• Bridging finance costs where the seller made commitments in reliance on completion

Not recoverable are mere inconvenience, time spent or lost opportunities that cannot be quantified. The seller is also under a duty to mitigate – he must make genuine efforts to resell promptly.

The practical point: in practice, the amounts actually enforceable are frequently well below what the seller initially demands. A shortfall in price in particular is often difficult to establish in a functioning market.

Buyers withdrawing from a purchase offer tend to focus exclusively on damages owed to the seller – and overlook the agent.

Under the Austrian Real Estate Agents Act, commission generally falls due upon conclusion of the brokered transaction. If the contract came into being through acceptance of the offer, the commission claim has arisen – even where the contract is subsequently rescinded by mutual agreement.

At a commission of three percent plus VAT, on a purchase price of EUR 400,000 that is approximately EUR 14,400 – an amount that may exceed the damages themselves.

The position differs on withdrawal under § 30a KSchG: there the commission claim falls away, because the transaction is undone retroactively. That is a further reason to examine this right of withdrawal first.

1. Check the deadlines immediately. The right of withdrawal under § 30a KSchG is limited to one week. Every day counts. Check the date of the first viewing and the date of your signature.
2. Read the purchase offer word by word. What matters: binding period, Reugeld or penalty clause, financing condition, reservation of revocation, conditions precedent and subsequent.
3. Establish whether the offer has already been accepted. The difference between Stage 1 and Stage 3 determines your entire legal position.
4. Do not sign anything the seller or agent puts in front of you now. Rescission agreements frequently contain clauses that worsen your position – such as an acknowledgment of full commission or a waiver of defences.
5. Do not pay without review. Amounts demanded are often negotiable, particularly where no Reugeld was agreed and the seller would have to prove actual loss.

Most of these situations arise because a purchase offer was signed without review – often under time pressure, at the viewing itself, with a reference to other interested parties.

A purchase offer with a sound financing condition, a clear binding period and a balanced withdrawal provision costs a fraction of what a later exit costs.

If you currently have a purchase offer in front of you and have not yet signed: have it reviewed first. That is by a considerable margin the most cost-effective moment for legal advice in the entire purchase process.