ABSTRACT
Private or civil law1 adjudication applies when the parties to a dispute stand in equal relationship.
8.2 SOURCES OF CIVIL LAW
Only statutory (Gesetz) and not customary law (Gewohnheitsrecht) can be a source of civil law.2 Public law is also a quasi-source for civil law or may have a great deal of influence over it as a result of the fundamental rights provisions in the Constitution and general constitutional provisions. Finally, case law must be considered although officially this does not constitute a binding legal norm (§ 12 ABGB) and has no binding effect on future cases, not even the decisions of the Supreme Court (OGH), despite their importance in litigation. However, case law is important because of the age of the ABGB and its inability at times to keep pace with a changing economy and society. Cases do have some form of persuasive authority, referred to in Austria as Gerichtsgebrauch. As a result, lawyers must be aware of new case law and need to refer to the latest OGH rulings on a topic.
