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Case Details

Case Details
National ID 7 Ob 93/12w
Mitgliedstaat Österreich
Common Name 7 Ob 93/12w
Decision type Supreme court decision
Decision date 28/11/2012
Gericht Oberster Gerichtshof
Betreff
Kläger Unknown
Beklagter Unknown
Schlagworte B2B, unfair terms

Unfair Contract Terms Directive, link

(1) The assessment of a clause as an immoral provision (contra bonos mores), specifically as a severely disadvantageous clause, is also possible in business to business relationships. However, consumer protection rules do not need to be considered. Therefore it is possible to reduce the immoral clause to its legally permitted core (geltungserhaltende Reduktion).

(2) The deviation from dispositive law may be qualified as a gross disadvantage in the sense of violating a moral provision, if the deviation is not deemed to be objectively reasonable.
The defendant is a tenant in a shopping centre which belongs to the plaintiff. The plaintiff filed a claim for payment of maintenance costs on the grounds that the defendant has a contractual obligation to pay for these maintenance costs.
The clause in question states that "all other costs of the shopping centre relating to administering the shopping centre have to be paid by the tenant, even if they were not yet mentioned".
(1) Are the provisions regarding the violation of moral principles (contra bonos mores) in general terms and conditions applicable to business to business relationships?

(2) May a deviation from dispositive law imply a gross disadvantage in the sense of violating a moral provision?
(1) The assessment of a clause as an immoral provision is also possible for business to business relationships. However, consumer protection rules do not need to be considered. Therefore it is possible to reduce the immoral clause to an extent that is considered still legal (geltungserhaltende Reduktion).

(2) The deviation from dispositive law may be qualified as gross disadvantage in the sense of a violation of a moral provision if the deviation is not deemed to be objectively reasonable. The court assumes such gross disadvantage if the legal positions are unbalanced. In this case, the general shifting of maintenance costs to the defendant (tenant) cannot be qualified as an objectively reasonable deviation from dispositive law and therefore the clause is of gross disadvantage for the defendant.
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The plaintiff's appeal was dismissed, but the defendant's appeal was successful.