In its decision of 26.01.2018, case number 8 Ob 131/17y, the Supreme Court ruled on the specific legal consequences of canceling a contract for work and services.

According to the established case law of the Supreme Court, a contractor has no right to the execution or completion of the work. The contractor has no right to employment. The customer cannot be forced to have the work produced even if he no longer has an interest in the production of the work (see RIS-Justiz RS0021809).

For this reason, cancellation or termination of the work production by the customer, if no acceptance obligation has been agreed, is not unlawful, but is always permissible.

According to Section 1168 ABGB, if the work is not carried out, the contractor is nevertheless entitled to the agreed remuneration if the contractor was prepared to perform the work and was prevented from doing so by circumstances on the part of the customer. However, the contractor must take into account what he has saved as a result of the work not being carried out or what he has acquired or intentionally failed to acquire through other use.

Due to the fact that the party ordering the work has canceled the work order or canceled the work, the party ordering the work prevents the execution of the work pursuant to Section 1168 para. 1 ABGB, which is why it must bear the consequences provided for therein. The obligation of the customer is limited to the consideration specifically regulated in § 1168 para. 1 ABGB (see RIS-Justiz RS0021809, RS0025771, RS0021831).

The legal consequence resulting from the cancellation pursuant to Section 1168 (1) ABGB is the contractor’s entitlement to claim the limited remuneration for the work. This claim is a claim for remuneration and not a claim for damages.

The above-mentioned Supreme Court decision states that canceling the work is not unlawful. The contractor does not have to make the deduction on its own initiative; rather, the customer must assert and prove what the contractor must allow to be deducted.

In the case of a consumer transaction under the Consumer Protection Act (KSchG), Section 27a KSchG must also be observed when canceling a contract for work. This stipulates the contractor’s obligation to notify the consumer if the contractor demands the agreed remuneration in (approximately) the full amount despite the cancellation, but not if the contractor himself takes into account an upward saving and merely demands an amount that is significantly lower than the agreed remuneration.