Rechtsprechung

  • Rechtssachenbeschreibung
    • Nationale Kennung: 4 Ob 521/84
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 09/10/1984
    • Gericht: Oberster Gerichtshof
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Österreich Deutsch
  • Artikel der Richtlinie
    Doorstep Selling Directive, Article 1, 1. Doorstep Selling Directive, Article 5
  • Leitsatz
    1. Der Verbraucher, der sich auf einer Messe nicht nur allgemein informieren lässt, sondern zum Ausdruck bringt, er wolle in Vorverhandlungen zwecks Abschlusses eines bestimmten Rechtsgeschäfts treten, bahnt die geschäftliche Verbindung zum Unternehmer selbst an; ihm steht daher kein Rücktrittsrecht nach § 3 Abs 1 KSchG zu.
    2. Der Verbraucher soll durch das Rücktrittsrecht nach § 3 Abs 1 KSchG vor Überrumpelung durch fragwürdig agierende Unternehmer und deren Vertreter geschützt werden.
  • Sachverhalt
    The plaintiff filed a lawsuit for payment of the 25,300-Schilling purchase price payable on delivery and assembly of the blinds. Invoking his right of withdrawal, the defendant applied for the case to be dismissed. The Court of First Instance rejected the claim on the grounds that the defendant had exercised his right of withdrawal under § 3 para 1 KSchG within the specified time limits and in accordance with due procedure. The Court of Appeal reversed the verdict, ruling that the defendant was not entitled to withdraw from the contract since he had initiated business contact with the plaintiff.
  • Rechtsfrage
  • Entscheidung

    In the case in question, the defendant had approached the plaintiff’s stand at a fair not merely to satisfy a general, unspecific desire for information. Rather, he was interested in a particular product: blinds for his house. He had not merely looked at the product, but asked for the costs to be calculated. Since it had not been possible to calculate exact costs, he had given the plaintiff’s manager permission to visit his house to take measurements of the windows. Thus, the defendant had acted on his own steam and his conduct had made it abundantly clear that he wished to enter into preliminary negotiations with the plaintiff with the aim of concluding a specific transaction. The defendant had therefore initiated the commercial relationship between the two parties.
    When the contract was agreed two days later in the defendant’s flat, there was no “element of surprise” typically evident in doorstep selling situations. As the defendant had already been interested in purchasing blinds for his house, there could no risk of the consumer ending up in a disadvantageous position and purchasing an object in which he had not previously had any interest and which he had only bought on account of the supplier’s deft negotiating skills. Thus, without being influenced by the negotiating practices of a sales representative who had arrived at the house unexpectedly, the defendant had been able to consider whether he wished to enter into a commercial relationship with the plaintiff and negotiate the agreement of a specific contract. The defendant had invoked his need for protection from the danger of being caught unawares, though there was no risk of this since he had been prepared for the visit by the plaintiff’s manager, which he had not only sanctioned, but initiated. Hence, the Court of Appeal had been right to uphold the claim for payment of the purchase price.

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