82 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY In this regard, the Code does not provide any solution – apart from the fact that it only constitutes “soft law” that is not enforceable. 4. THE LEGAL DOCTRINE OF “FRUSTRATION OF PURPOSE” OR “DISCONTINUATION OF THE BASIS OF THE TRANSACTION” The legal doctrine of “frustration of purpose” or “discontinuation of the basis of the transaction” is based on the idea that the parties of a contract should be able to amend or terminate that contract if: a typical precondition of said contract which was not referred to in the contract because the parties had taken it for granted is subject to an unforeseeable and unforeseen substantial change after the conclusion of the contract with the result that the purpose of the contract definitely cannot be achieved anymore; and the change is not attributable to the party invoking the situation. The doctrine is acknowledged by the legislation and/or jurisprudence of various countries, as the following examples show. 4.1. Austria The Austrian Civil Code5 does not contain any provision explicitly referring to the doctrine of “frustration of purpose” or “discontinuation of the basis of the transaction”. However, according to the prevailing theory, Sec. 901 provides a basis for this doctrine6. The first sentence of said provision reads as follows: “If the parties have expressly made the motive or ultimate purpose of their consent a condition, the motive or ultimate purpose shall be regarded as another condition.”. Despite the word “expressly”, it is established case law that the provision also allows for implied conditions – and that it can be applied if the basis of the transaction ceases to exist and thus causes the ultimate purpose to become finally unattainable. 5 Allgemeines Bürgerliches Gesetzbuch (ABGB). 6 A detailed analysis of the application of the doctrine in Austria was recently provided by Doralt, Wegfall der Geschäftsgrundlage, JBl 2020, 491.
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