Mr Bighead, a famous sportsman, agreed with Miss Butterfly, a known sex worker, that he would pay her €10,000 for her services. After the contract was performed, Mr Bighead declared that he is not going to pay her anything. Can Miss Butterfly recover the amount promised to her?

AUSTRIA

OPERATIVE RULES

Miss Butterfly can recover the agreed amount.

DESCRIPTIVE FORMANTS

Sex work is not generally an illegal activity under Austrian criminal and administrative laws; the same applies to operating a brothel. Certain public law regulations constitute a legal framework for these activities by, for example, requiring sex workers to register with a public authority, to undergo regular medical checks, or by prohibiting sex work at certain places (such as housing areas).

The central rule for assessing the validity of a contract between a sex worker and her or his client for the performance of sexual services is the second alternative mentioned in Art. 879(1) Civil Code (CC), according to which “a contract infringing a statutory prohibition or good morals is void”. The reference to “good morals” was introduced in 1916 by one of the major amendments to the 1811 Civil Code, which reformed large parts of the Austrian law of obligations under the influence of the newly adopted German Civil Code. Regarding Art. 879(1) CC, however, no change as to substance was intended. The purpose was to cover contracts which are not explicitly forbidden by a specific statutory provision, but violate basic value judgements inherent in the Code, by way of a short-term general clause.

Today, courts and academics basically agree that the concept of “good morals” embodies rights which are not explicitly recognised by statutory provisions but ensue from the totality of legally protected interests, for which the value judgements and fundamental principles of the (Austrian) legal system are determinative. “Good morals” can thus be equated with “unwritten law”. According to the predominant view, moralities (in the sense of non-legal conceptions) are only relevant to the extent they are reflected in the legal system. The main test usually applied is a weighing of interests (see section 1.3 below). Some authors tend to emphasise extra-legal morality values somewhat more strongly.