Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Supreme Court, Judgment 8 Ob 132/15t
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 27/01/2017
    • Gericht: Supreme Court
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: B2C, unfair terms
  • Artikel der Richtlinie
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 2
  • Leitsatz

    ECLI:AT:OGH0002:2017:0080OB00132.15T.0127.000


    In the case of a class action lawsuit, if a seller is prohibited from using certain clauses in its general terms and conditions, a reasonable performance period must be set, not only for the revision of the general terms and conditions but also for the suspension of reliance on the inadmissible clauses.

  • Sachverhalt

    The plaintiff is an association entitled to bring an action according to article 29 of KSchG. The defendant is the by far largest provider of telecommunications services in Austria. It enters on an ongoing basis into legal transactions with consumers within the meaning of article 1 of KSchG and bases the contracts concluded with them on general terms and conditions.

  • Rechtsfrage

    Examination of various clauses of the general terms and conditions of a telecommunications provider.

  • Entscheidung

    The following clauses have been reviewed and their in/validity determined as follows:

    1) "The customer may transfer the contract with [defendant] to a third party if [defendant] agrees to the transfer in writing".

    Disadvantageous exclusion of the legal validity of informal declarations = violation of article 10, paragraph 3 of § 10 (3) KSchG.

    2) "If the contractual relationship or an agreement for an additional service is terminated, the customer is obliged, if he rightfully terminated the contractual relationship by extraordinary termination, to pay the monthly basic fee proportionate up to the day of termination. In all other cases, the customer shall pay the full basic fees, including the month in which the termination became effective."

    The clause is grossly discriminatory because it may require the customer to pay the full basic fee even for periods in which the defendant is no longer required to perform. Since the defendant's general terms and conditions also provide for ordinary termination at other dates than the last day of the month, the Supreme Court disagreed with the defendant’s argument that the clause had an adverse effect only in those cases in which the customer himself was to blame for the premature termination.

    3) "The customer is released from his obligation to pay only after a properly completed assignment. However, this provision shall only apply if the [defendant] endeavours to make the assignment without undue delay."

    The clause grossly discriminates against customers because, contrary to article 1424 of ABGB, they are unilaterally burdened with the risk of difficult assignments that may not contain any further details about the sender or account information.

    4) "If objections are not raised with the [defendant] in writing within three months of receipt of the invoice, then A.'s claim shall be deemed to have been accepted [...]".

    Violation of Section 6 (3) KSchG: The clause does not indicate that the lack of objections to an invoice of the defendant constitutes merely a declaratory acknowledgement.

    5) 'The minimum duration of the contract shall commence at the end of the day on which the service was made available, but not before the conclusion of an agreement providing for the minimum duration of the contract'.

    In the absence of this clause, the minimum duration of the contract would run from the date of conclusion of the contract, as understood by the average consumer concerned. It, therefore, violates article 864a of ABGB and article 879 paragraph 3 of ABGB.

    6) If a fee change is based on a contractually provided adjustment clause using an objective index determined by a government agency (specifically: Consumer Price Index (CPI)), then the customer has no extraordinary right of termination under article 25 of TKG.

    In the present case, the clauses in question, therefore, do not constitute a violation of article 25, paragraph 3 of § 25 (3) TKG and do not conceal the true legal situation within the meaning of article 6, paragraph 3 § 6 (3) KSchG. The application of an objective CPI that cannot be influenced unilaterally by the telecommunications company is also not grossly disadvantageous within the meaning of article 978, paragraph 3 of § 879 (3) ABGB.

    7) "Should one of the provisions of the general terms and conditions of [defendant] be invalid, this provision shall be replaced by a valid provision as dictated by consumer protection law".

    The severability clause is in conformity with the law. If a void term is excluded from the contract text, the contract must be amended in accordance with the dispositive law, taking into account the hypothetical will of the parties or in the absence thereof usual custom and practice.

    Volltext: Volltext

  • Verbundene Rechtssachen

    Keine Ergebnisse verfügbar

  • Rechtsliteratur

    Keine Ergebnisse verfügbar

  • Ergebnis

    The applicant's extraordinary appeal is partially dismissed by the Supreme Court.