Wert und Preis im Zivilrecht

The thesis focuses on valuation issues in selected fields of Austrian private law. What are the aims of valuation in those fields and what are the methods adequate to pursue these aims? Three different legal contextes are investigated in detail: 1. Freedom of contract is an important pillar of the Austrian legal System; however, it is no freedom without restraints. Issues of substantive justice may give the right to rescind the contract. Under Austrian law, a contract is not binding upon the aggrieved party if the value of the consideration given exceeds that of the consideration received by more than 100 percent. However, the meaning of "value" in this context remains doubtful. 2. Apart from contractual agreements, the law confers the right on one person to seize the property of another person in certain circumstances. The paradigmatic case is the rule of eminent domain. In order to determine adequate compensation, the property has to be valued. Should the compensation be based purely on the objective market value, or should it include a higher value that the property may have in the hands of its previous owner? 3. Valuation issues have to be addressed in corporate law as well. I concentrate on two aspects. First, the majority shareholder may squeeze out the minority in certain circumstances. What is the relevant value of the shares for the purpose of assenssing the compensation? Second, when two companies merge, a ratio of exchange for the shares has to be agreed by those in control of the companies. What is relevant value of the companies businesses? In order to anwer these questions, values or prices cannot be analysed without considering the results of modern economic theory. Thus, economics plays an important role in the thesis. However, I do not pursue a law and economics approach; welfare economics are just one method for interpreting the law. Redistributional and ethical issues will be given due consideration. Foreign legal systems can provide important insights; therefore, both German and English law are analysed in some detail. The thesis does not provide a comprehensive analysis of valuation problems in private law, but focuses on two basic questions: 1. How far is the law prepared to accept that a bargain struck by the parties departs from a supposedly obejctive exchange? In this context, the concept of "value" is a central issue when addressing the conflicting notions of freedom of contract and substantive justice. 2. Which value has to be compensated of private property is confiscated, either for public use or for private benefit?