Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: 7 Ob 599/93
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 10/11/1993
    • Gericht: Oberster Gerichtshof
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Österreich Deutsch
  • Artikel der Richtlinie
    Doorstep Selling Directive, Article 1, 1.
  • Leitsatz
    Keine Werbe- oder Ausflugsfahrt oder eine denselben ähnliche Veranstaltung mit typischer Überrumpelungssituation im Sinne des § 3 Abs 2 KSchG liegt vor, wenn im Rahmen einer – zu einem angemessenen Preis angebotenen – Urlaubsfahrt neben verschiedenen Fahrten zu Sehenswürdigkeiten auch eine Fahrt zur Besichtigung einer Produktionsstätte, bei der auch die dort erzeugten Waren gekauft werden können, geboten wird.
  • Sachverhalt
    The defendant had booked a bus journey around Turkey from 5th to 19th May 1990 with a travel agent. The first week of the holiday was a tour of the country, followed by a week at a seaside resort. A Turkish travel agent looked after the tour group. On the last day of the first week’s tour, 12th May 1990, the tour group was taken to visit the plaintiff’s carpet factory, a visit that had not been specifically detailed in the tour schedule. The factory visit was optional. Following a presentation describing the various processes involved in producing a carpet, the group was served tea and offered the opportunity to take a look at some of the carpets. The defendant liked one carpet that was hanging on the wall and conveyed this to her sister. At this point, the salesman approached the defendant and entered into a discussion in German about the sale of the carpet. After bartering the price down from 69,000 to 60,000 Austrian Schillings, the defendant signed a purchase contract provided by the plaintiff and written in German. The contract contained no information about the defendant’s right of withdrawal. After leaving a deposit, the defendant was to pay the outstanding sum due once she had taken delivery of the carpet. On 22nd May 1990, the defendant stated in writing her intention to exercise her right of withdrawal from the contract as per § 3 KSchG. The plaintiff, however, rejected the withdrawal, arguing that the conditions stipulated in § 3 KSchG were not present in this instance.
    The plaintiff filed a suit requesting the payment of the outstanding 59.500 Austrian Schillings from the agreed price. She argued that the defendant was not entitled to a right of withdrawal because she had purchased the carpet during a visit to a carpet factory as part of a trip abroad and not as part of a “promotional trip, excursion or similar event” as per § 3 para 2 KSchG.
    The defendant requested that the case be dismissed. She argued that the visit to the plaintiff’s carpet factory was a joint enterprise between the Turkish travel agent and the plaintiff. When she entered into a discussion about the sale of the carpet following the factory visit, the defendant was in a situation typical of promotional visits and excursions where she could easily be caught unawares. She was lured into buying a carpet, which, on the grounds of her low income, she could not afford and which, in any case, did not fit her room. In addition, the fact that there was a purchase contract written in German demonstrated that the primary purpose of the trip was not to visit a typical Turkish workshop, but rather to sell goods.
    Both the Court of First Instance and the Court of Appeal upheld the claim.
  • Rechtsfrage
  • Entscheidung

    The OGH viewed the case as follows. Under § 3 para 2 KSchG, the purchaser has the right of withdrawal that applies in doorstep selling transactions as per § 3 para 1 KSchG when the supplier, or a third party working with the supplier, takes the consumer onto his business premises either in the context of a promotional trip, excursion or similar event, or by approaching him individually on the street. The right of withdrawal is intended to protect the consumer against being caught unawares in agreeing a contract. Thus, it is directed at methods of instigating a transaction that aim to tempt a consumer, who would ordinarily have no interest in the goods/services on offer, into ill-advisedly agreeing a contract and to do so by adroitly exploiting the consumer’s weakness in the situation. However, whether the right of withdrawal applies or not is not determined by the fact that a consumer has been caught unawares in a given individual case, but rather, on the grounds of ensuring legal protection, depends on legal technicalities. Thus, the consumer is not entitled to a right of withdrawal in all conceivable instances in which an imbalance may exist. Instead, Austrian legislators limited the right of withdrawal to circumstances in which contracts are typically agreed without due consideration and under psychological pressure.
    Promotional trips and excursions do not typically catch the consumer unawares simply because he has been taken by the supplier onto his business premises. Rather, the danger lies in the fact that the consumer is offered, for a relatively small financial outlay, a trip, meals and often a gift as well. The consumer then feels embarrassed into purchasing the goods on offer at the subsequent promotional exhibition. However, if, within the context of a holiday offered at an appropriate price, there is, alongside different sightseeing trips, an organised visit to a workshop where goods manufactured there are on sale, this does not constitute a promotional trip. Given that the consumer does not find himself in a situation typical of promotional trips and excursions, in which he may be caught unawares, a visit to a workshop – in the context of a tour – with the subsequent sale of goods can not be regarded as a “similar event” as per § 3 para 2 KSchG. The fact that the tour group was served tea by the plaintiff is not tantamount to a compulsion to buy typical of promotional trips and excursions. Equally, the fact that the tour group was taken to the carpet factory, with the intention of selling them goods, has no bearing on the case. Similarly, there are no grounds to see this as a situation in which the consumer may be caught unawares simply because the defendant, in spite of her low income, decided to purchase an expensive carpet that did not fit her room. The only question that needed to be explored was whether such events typically threatened to place the consumer in a situation where he might be caught unawares. Since none of the events outlined in § 3 para 2 KSchG applied in this case, the defendant was not entitled to a right of withdrawal and the claim was upheld.

    Volltext: Volltext

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