The plaintiff’s appeal to the OGH was unsuccessful.
The OGH had to determine whether the plaintiff should be regarded as a trader as per § 1 para 2 line 5 HGB on the basis that he chartered the yacht. If he was to be regarded as a trader, he could not, under § 351a KSchG, invoke laesio enormis. Alongside several other issues, the OGH explored the question of whether characterising the plaintiff as a tour operator under § 31b KSchG meant that he could not be categorised as a trader as per § 1 para 2 line 5 HGB. Following extensive consultation of the relevant literature, the presiding judges ruled that, in view of the “difficulties in categorising dogmatically the different types of contract developed in practice through private sales”, there was no sound argument as to why chartering the yacht should not be characterised as a commercial activity if the person chartering the yacht actively transports passengers himself. Even the supplementary services offered by the supplier that make him a tour operator, as well as the fact that the business is a free-time activity, do not mean that this should not be viewed as a commercial activity. There can equally be no serious doubts that a city tour by bus or taxi constitutes transporting people on land. Thus, there was no logical reason as to why a similar tour by boat should be viewed differently. The variety of travel services on offer does not alter the fact that transportation is part of the overall contract (whether a travel or charter contract), meaning that the plaintiff is (legally) acting as a trader. From the legal definitions contained in § 31b KSchG, it is clear that transporting travellers is a key service provided by a tour operator. This applies equally in the case of chartering a yacht for a sailing cruise at sea. In summing up, the presiding judges ruled that the supplementary services offered by the supplier (in addition to transporting the guests) did not mean that he should not be regarded as a trader as per § 1 para 2 line 5 HGB.