Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: Supreme Court, Judgement 4 Ob 23/21t
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Beschluss des Obersten Gerichts
    • Beschlussdatum: 20/04/2021
    • Gericht: Supreme Court
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: legal guarantee, product characteristics, B2C, B2B
  • Artikel der Richtlinie
    Consumer Sales and Guarantees Directive, Article 4 Consumer Sales and Guarantees Directive, Article 4 Unfair Contract Terms Directive, Article 3
  • Leitsatz

    ECLI:AT:OGH0002:2021:0040OB00023.21T.0420.000


    § 933b ABGB (Austrian Civil Code; corresponds to Art 4 of Directive 1999/44/EC) provides for an extension of the warranty period in the case of recourse to warranty in a contractual chain. If the final purchaser asserts warranty claims against his contractual partner and the latter ("the last seller") learns in this way that his predecessor has provided him with defective performance, the last seller may continue to assert his warranty claims under the contract with his predecessor despite the actual expiry of the warranty period.

  • Sachverhalt

    The plaintiff asserts claims assigned to it by the floor layer in connection with the construction of a floor structure in a factory hall of the client, respectively the customer. For the work, the floor layer used the mortar supplied by the defendant (= supplier) (which was supposed to have a certain compressive strength). The contract between the floor layer and the supplier includes the (valid) general terms and conditions of the supplier. The defendant delivered the mortar to the construction site (for the first time) on 03.06.2016. At the beginning of August 2016, the building owner (= final customer) lodged a complaint against the floor layer. Subsequently, the floor layer carried out renovation work, during which the floor structure was rebuilt.

  • Rechtsfrage

    On one hand, the question was whether the reduction of the limitation period in the general terms and conditions was permissible or not. On the other hand, it first had to be clarified whether the statutory extension of the warranty periods according to § 933b ABGB (corresponds to Art 4 of Directive 1999/44/EC) is applicable to claims for damages and applies to contracts for work and services. Furthermore, it was questionable whether the restriction of § 933b ABGB to the consumer (as the final purchaser) was too narrow or was nevertheless supported by the law.

  • Entscheidung

    1. The agreement of a limitation period shorter than the statutory limitation period in general terms and conditions is generally permissible but is subject to the content review pursuant to § 879 (3) ABGB. While in the case of consumer contracts the blanket reduction of the limitation period causes an inadmissible restriction of the obligation to pay damages, the agreement of a shorter limitation period is, in any case, admissible without restriction if the reduction of the period was agreed individually between contracting parties of at least approximately equal strength (e.g., B2B).

    2. The extension of the warranty period in case of recourse in a contractual chain according to § 933b ABGB (= Art 4 of Directive 1999/44/EC) is also applicable to claims for damages and also applies to contracts for work and services. The restriction of § 933b ABGB to the consumer (as the end-user) is based on its standardisation in Directive 1999/44/EC, which is a consumer protection directive. The fact that the final customer is a consumer or not is irrelevant for the purpose of the provision. The restriction to consumer transactions at the end of the sales chain, therefore, appears questionable with regard to the objective justification. The legislative materials do not contain any justification for this either.

    Volltext: Volltext

  • Verbundene Rechtssachen

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  • Rechtsliteratur

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  • Ergebnis

    The Supreme Court referred the case back to the lower courts for a new decision. The lower courts must take into account the Supreme Court's comments when making a new decision.