Most businesses have to have goods forwarded regularly or at least occasionally, and thus require the services of freight forwarders. In the performance of the forwarding damages occasionally occur. In such a case, the Austrian freight forwarder’s customer finds himself confronted with the Austrian General Freight Forwarding Conditions (Allgemeine Österreichische Spediteurbedingungen—AÖSp) and the reliefs and limitations of the freight forwarder’s liability standardised in them.

As the freight forwarder’s then practically unlimited liability risks were not in proportion to his returns, quite some time ago efforts began to substitute and to supplement statutory law by autonomous regulations. In Germany, following negotiations between various commercial organisations, the German General Freight Forwarding Conditions (Allgemeine Deutsche Spediteurbedingungen—ADSp) were published as early as 1927. Based on a German decree of 1935, an order of the German “Reichs” Transportminister of December, 1939, declared these conditions binding for all business contracts between members of the then “Reichsverkehrsgruppe Spedition and Lagerei” and their customers. This “Reichs” decree of 1935 was, after the 1939-45 world war, declared void in liberated Austria. The Fachverband (official organisation) of freight forwarders within the Transport Section of the Austrian Federal Chamber of Commerce and Industry, revised the German freight forwarding conditions somewhat, adjusting them to Austrian law, and published them in 1947 as Austrian General Freight Forwarding Conditions (AÖSp).

The AÖSp are not statutory law in the formal and material sense and they therefore do not bind the general public. Their nature is rather that of a master contract, on which the individual contracts of the freight forwarders with their principals are based; the members of the Fachverband (official organisation) of freight forwarders being obliged to perform their commercial activities according to the AÖSp.

Accordingly, the standing view of the Austrian Courts is that the rules of the AÖSp are binding for the freight forwarder’s customer only if the AÖSp were either expressly or at least by tacit consent agreed to, and thus became the basis of the contract between the freight forwarder and his principal.

Such a tacit consent, whereby the AÖSp became the basis and content of the contract between sender and freight forwarder, is as a rule accepted by the Austrian Courts if the freight forwarder’s principal is a merchant under the Commercial Code, who while contracting, knew, or—according to the nature of his business—had to know of the existence of the AÖSp. For merchants who have goods forwarded