Hermann von Schullern zu Schrattenhofen · 1897
Schullern’s introduction and commentary on Austria’s instalment-sales law moves from a statement of economic principle through a synopsis of legal protections to an account of commercial abuses and legislative compromise. Its central argument is that restrictions on contractual freedom are justified where private transactions threaten the wider economy. The statute exemplifies this principle because its protections cannot be waived by agreement:
Ein solches Vorgehen muss seine Begründung in einem sehr wichtigen, volkswirtschaftlichen Interesse finden, wenn es gerechtfertigt sein soll.
English translation: Such a procedure must find its justification in a very important economic interest if it is to be justified.
The sentence establishes the burden of justification for compulsory protection. Schullern does not simply celebrate intervention: he first identifies its infringement of contractual freedom, then explains why the economic consequences of unrestricted instalment selling warrant it.
His legal synopsis concerns commercial sales of movable property delivered before payment is complete. A seller exercising a reserved right of withdrawal must return the deposit and instalments with statutory interest and reimburse necessary and useful expenditure. Agreements concerning compensation for use or damage become valid only after dissolution of the contract. Acceleration requires arrears on two successive instalments; other penalties for missed payment dates are excluded. Buyers retain remedies for gross disparity in value and defective goods, while sellers must supply a copy of any written instalment agreement.
Procedural rules reinforce these substantive protections. Actions generally belong before the buyer’s local court, and summary proceedings permit free evaluation of evidence, including oral agreements that supplement or contradict the written contract. The decisive rule is:
Alle diesen Bestimmungen zuwiderlaufenden Zugeständnisse des Käufers sind ungültig.
English translation: All concessions of the purchaser running counter to these provisions are invalid.
Protection thus depends on limiting what the buyer can legally concede, not merely on providing remedies that a printed contract could surrender. Schullern also stresses the law’s reach beyond formal sales to arrangements serving the same purpose, such as hiring out goods, while noting the exclusion of transactions commercial on the buyer’s side. Legal substance takes precedence over contractual form.
The commentary then supplies its economic justification through the experience of lawyers representing peasants, the lower middle class, and workers. Small instalments could induce purchases exceeding buyers’ resources, especially of luxury articles or machines poorly suited to small-scale production. Promises of indulgence encouraged trust, while unread printed forms contradicted oral assurances. Schullern presents the resulting dependence as comparable to entrapment by a usurer. Poor-quality merchandise compounded the harm:
Dass dabei auch vielfach elende Ware zum Verkaufe gelangte, kann nicht wundernehmen.
English translation: That in the process wretched goods also frequently came to be sold can occasion no surprise.
This observation places defective goods within a broader pattern of exploitative recruitment rather than treating them as isolated contractual failures. The buyer’s vulnerability arises from the combination of limited means, momentary desire, persuasive agents, and discrepancies between spoken promises and enforceable documents. The earlier emphasis on oral evidence consequently acquires a practical rationale.
Schullern gives the argument regional force by reporting that such transactions had sometimes completed the ruin of already endangered peasant holdings in Tyrol. He treats the transmission of private losses into wider economic damage as generally recognized, rather than attempting a detailed demonstration. His case is therefore grounded in professional experience and illustrative consequences, not statistical analysis.
The closing legislative history qualifies the achievement. The upper house removed provisions intended to prevent economically harmful instalment purchases, while strengthening and extending civil-law and procedural protections for buyers. The lower house accepted that revision on its justice committee’s recommendation. The committee nevertheless hoped that further legislation against usury, particularly commodity usury, would prevent the compromise from permanently narrowing protection. The commentary’s enduring conceptual distinction is between preventing damaging transactions and protecting purchasers once those transactions occur: the enacted law advances the latter, while leaving the former to anticipated reform.
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