Mr Courage, a person with dwarfism, concluded a contract with Smalltown's local pub, Mini Bar, to perform in circus-like events called “the flying dwarf ”. During these events (commonly referred to as dwarf throwing), Mr Courage would wear protective clothing and be hurled across the pub onto an airbed by strong men who were competing to see who could throw him the furthest. After a disagreement with Mini Bar's owner, Mr Courage did not receive any payment for his performances in the dwarf throwing events of the last two months. Can Mr Courage recover the unpaid amount on the basis of his contract with Mini Bar?

Variation: In the scenario where Mini Bar's owner has paid Mr Courage in advance, can the bar recover its money or require specific performance from Mr Courage if he says he does not wish to perform in these events anymore?

Case Reference: Wackenheim v. France, Communication No. 854/1999, UN Doc. CCPR/C/75/D/854/1999 (2002).

AUSTRIA

OPERATIVE RULES

Mr Courage would most certainly have a claim for his outstanding payment.

Variation: Most likely, Mini Bar's owner would not be able to require specific performance, but he could recover his payment made in advance.

DESCRIPTIVE FORMANTS

Classifying the contract between Mr Courage and the bar owner into the traditional typology of contracts acknowledged in Austrian law is problematic, but probably not necessary for solving the particular questions relevant in Case 4. Depending on further facts, the contract could be qualified as a labour contract (Arbeitsvertrag, regulated in Arts. 1151–1164a CC and specific labour law statutes), for which it would be characteristic that the employer is entitled to determine the time and place of the employee's performance, and to give further orders within the scope of the contract. Alternatively, a contract for services in the sense of establishing an obligation to achieve a specific result (Werkvertrag, Arts. 1152 et seq., 1165–1171 CC) could be at hand. This type was assumed, for example, in the case of a solo dancer obliged to perform in certain events, or in the case of a singer who must perform on certain days but is completely free in between. Since no specific rules are applicable, the case of Mr Courage would arguably be solved by resorting to general private law principles, including the immorality rule of Art. 879(1) CC. See section 1.3 below.