The plaintiff distributes and installs different types of elevators. Upon request, the plaintiff offered the customer a platform lift with three levels, hoistway glazing and a protective roof above the elevator doors. The order was placed on 27 August 2014 at the customer's home. At the same time, a withdrawal instruction was handed over to and signed by the customer.
Due to the death of the customer, one of the defendants (an heir of the customer) declared withdrawal of the contract on 9 September 2014.
On 4 March 2015, the plaintiff filed a claim with the court. In their opinion, withdrawal - according to the provisions of the FAGG - shall be inadmissible, because the elevator is deemed to be a customized good due to its modular construction and therefore could not be used in other houses.
The defendants (all heirs of the customer) elaborated that the withdrawal declaration had been made prior to customisation of the elevator. Because of the modular parts of the elevator, the use in other households should be possible and therefore Art 16 Directive 2011/83 (implemented into Austrian law by § 18 FAGG) should not be applicable.
The District Court of Bezau followed the defendant's opinion and dismissed the action. According to the opinion of the District Court, Art 16 Directive 2011/83 (implemented into Austrian law by § 18 FAGG) is not applicable, because the ordered elevator is primarily a prefabricated model, where the customer is not able to make further specifications as to type, size and installation.
The plaintiff appealed against the decision of the District Court.