In order to best grasp how the phenomenon of concurrent delay fits into Austrian law, a closer look at the general concept of delay is helpful. Under Austrian law, delay is one form of defective performance of contractual obligations. A party to a contract is in delay if it fails to perform its obligations by the agreed time, at the agreed place or in the agreed manner (§ 918 Austrian Civil Code ABGB). Unless agreed otherwise, the contractor of a construction contract is in delay if and as soon as it does not finish the agreed works within the time for completion. Missing an interim date is only considered to constitute a delay if agreed beforehand, i.e. if interim dates are agreed to be binding.
A party can be in delay until the employer takes over the works. After taking over, defects can lead to warranty claims or claims for damages.
This legal definition of delay is slightly different from an economic or technical understanding, according to which delay usually means that already the progress of works (before the end of the deadline) is slower than planned. However, when measuring the duration of delay in hindsight, this difference is of minor importance.
In general, the responsibility for any case of delay can be attributed to one of the parties to the (construction) contract, depending on whether the delay was caused by a reason for which the employer or the contractor carries the risk. To better understand the contractual risk allocation, Austrian courts use the so-called “theory of spheres”, through which it can be determined whether any particular cause of a delay falls into the employer's or the contractors' sphere of responsibility. Each party's sphere of responsibility is defined by the scope of its tasks and the risks allocated to this party by the contract or by statutory provisions. However, Austrian law also uses a third category, the neutral sphere, which contains all risks that neither party can influence (e.g. natural disasters). Unless otherwise agreed, the contractor is also responsible for the neutral sphere.
A contractor is entitled to an extension of time for completion if and insofar as the cause of the delay comes from the employer's sphere or responsibility. This means that a contractor who claims not to be responsible for an additional time needed to complete the works (i.e. that he is not in delay) must prove a particular cause lying within the employer's sphere of responsibility and for how long this particular cause extended the time needed to perform his tasks in the agreed manner. Consequently, concurrent delay can occur if two separate causes, each arising in a different sphere of responsibility, result in additional time required for completion during the same time period.
However, there is no generally accepted definition of concurrent delay in Austria. Thus a broader understanding would also be possible. One could, for example, also classify scenarios as concurrent delay in which a cause for which one party would have been responsible has no effect because of the other party’s cause which exclusively results in the actual delay. Scenarios where two separate causes, each from a different sphere, only jointly resulted in a delay could also be considered concurrent
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