• Rechtssachenbeschreibung
    • Nationale Kennung: 6 Ob 104/01i
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 06/06/2001
    • Gericht: Oberster Gerichtshof
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Österreich Deutsch
  • Artikel der Richtlinie
    Timeshare Directive, Article 1 Timeshare Directive, Article 2 Timeshare Directive, Article 3, 1. Timeshare Directive, Article 5, 1. Timeshare Directive, ANNEX
  • Leitsatz
    1. Die Timesharing-RL und das TNG enthalten zwingende Bestimmungen über die Informationspflicht des Unternehmers und das Rücktrittsrecht des Verbrauchers, nicht aber ein gesetzliches Kündigungsrecht, wie es § 15 KSchG vorsieht.
    2. Das den Verbraucher in erster Linie interessierende Nutzungsrecht an der Ferienwohnung, dem Hotelzimmer und ähnlichem ist nach seinem Inhalt ein befristetes Gebrauchsrecht an fremder Sache, also Miete.
    3. Dass der Unternehmer eines Timesharingvertrages neben der Einräumung des Nutzungsrechts noch zu anderen Nebenleistungen verpflichtet ist, schadet der Beurteilung des Vertrages nach der Hauptsache (als Mietvertrag) genauso wenig wie der Umstand, dass neben dem bei Vertragsbeginn zu leistenden Preis zusätzliche Zahlungen für die Betriebskosten vereinbart wurden.
  • Sachverhalt
    In 1994, the plaintiff agreed an accommodation contract with the defendant over a 30-year period. As agreed, he paid 114,450 Austrian Schillings to acquire “holiday credits”. These were based on a points system and entitled him to use rooms, studios and suites for holiday purposes in the defendant’s club hotels, providing that an advance booking had been made. The total price for these “holiday credits” comprised only the room rent and not the operating costs, the visitor tax or the cost of refreshments. In accordance with the agreement, the plaintiff also had to pay an annual subscription of 0.06% of the total price for the holiday credits. The contract granted the club partner (plaintiff) the right to cancel the contract prematurely only if the defendant was guilty of breach of contract.
    In 1999, the plaintiff sent a letter of cancellation to the defendant, requesting that the contract be terminated at the earliest opportunity. This was not accepted by the defendant.
    The plaintiff sued for payment of 93,467.50 Austrian Schillings. He argued that he was entitled to cancel the contract on the grounds that he was bound for an unreasonable period by the contract as per § 6 para 1 line 1 KSchG and because he was entitled to a right of cancellation under § 15 para 1 KSchG (right of cancellation). He claimed for the monies outstanding from the holiday credits he had acquired with an advance payment over a 30-year period. The defendant applied for the case to be dismissed, arguing essentially that the provisions cited by the plaintiff did not apply in this case.
    Both the Court of First Instance and the Court of Appeal concurred with the defendant’s argument and rejected the claim.
  • Rechtsfrage
  • Entscheidung

    In his appeal against the Court of Appeal’s ruling, the plaintiff invoked § 15 para 1 KSchG, meaning that the OGH had to deal solely with the question of whether the provision applied. Under this regulation, a consumer may terminate any “contract agreed for an indefinite period of time or for over a year, in which a supplier is committed to delivering movable material objects, including energy, on an ongoing basis or to delivering services on an ongoing basis, and in which the consumer is committed to making ongoing payments” by giving two months’ notice at the end of the first year and then at the end of each six-month period. The OGH ruled that, as a general principle, classifying the nature of the services provided by the defendant was critical in assessing whether the plaintiff was entitled to a right of cancellation under § 15 para 1 KSchG. Though it did not yet apply in this case, the TNG, which had transposed the Timeshare Directive, defines a timeshare entitlement as a right to use a given object on a recurring basis for a set period of time (though at least three years). While the Directive and the TNG contains stringent provisions governing the supplier’s duty to provide information and the consumer’s right of withdrawal, they do not include a statutory right of cancellation, as laid down in § 15 KSchG.
    The consumer’s right to use a holiday apartment, hotel room and the like constitutes a temporary right to use another person’s property (ie it is a rental agreement). The fact that the supplier in a timeshare contract is not only obliged to grant the consumer an entitlement to use the property, but also to offer other supplementary services, has as little bearing on any assessment of what constitutes the primary object of the contract (ie the rental agreement) as does any agreement at the outset on the payment of operating costs in addition to the price. Such additional costs do not have any bearing on whether the contract is classified as a timeshare contract, nor, according to the TNG, are they critical in classifying an accommodation contract according to its primary object.
    The 30-year accommodation contract constituted a continuing obligation, based essentially on renting hotel rooms and similar property on the defendant’s premises on a recurring basis. The defendant was obliged to make the property available, though this did not necessarily mean that the supplier’s commitment to provide services constituted a contract of work or a sales contract as per § 15 KSchG. The law is quite explicit in stating that a right of cancellation exists only for these types of contract. In this case, the contract was based essentially on leasing holiday property and not on services provided by the supplier. Thus, there was no right of cancellation under § 15 KSchG.
    Moreover, the court’s conclusion tallies with the legal position under the TNG. This law stipulates that a contract must have a minimum 3-year duration before a right of cancellation exists, in contrast to § 15 para 1 KSchG, according to which a right of cancellation exists at the end of the first year. Austrian legislators had not weakened the level of consumer protection with the TNG, but rather had transposed the Timeshare Directive on the basis of the existing legal position, according to which accommodation and timeshare contracts are not to be classified (purely) as sales contracts or contracts of work.

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