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Case Details

Case Details
National ID 9 Ob 31/15x
Member State Austria
Common Name 9 Ob 31/15x
Decision type Supreme court decision
Decision date 21/04/2016
Court Supreme Court
Subject
Plaintiff Unknown
Defendant Unknown
Keywords cancellation of contract, delivery, notification, terms and conditions

Unfair Contract Terms Directive, Article 4, 2. Unfair Contract Terms Directive, ANNEX I, 1., (f) Unfair Contract Terms Directive, ANNEX I, 1., (g)

(1) The prohibition of a fictitious service (service considered as being effected) is not limited to declarations of intent. Important legal notifications made by the entrepreneur to the consumer which may have adverse consequences for the consumer (e.g. reminder, termination, invoice) may be concerned as well.

(2) A clause prohibiting consumers to write down their personal PIN code specifically on the card itself is void in terms of violating moral provisions (contra bonos mores).

(3) A clause regarding contract terminations by the entrepreneur in case of decreased credit-worthiness is void; it would be admissible in case the fulfilment of the consumers liabilities is at risk.
The defendant is a credit card institute operating in Austria and thereby using general terms and conditions. The plaintiff deems certain clauses of these general terms and conditions to be void and requests to prohibit the use of these clauses.

One of the clauses includes a fictitious service in relation to notifications about changes regarding the general terms, the services and the fees at the most recently notified address.

Another clause states that the personal PIN code may not be written down, especially not on the card.

Another clause states that the defendant has the right to terminate the contract and immediately demand the loan back if a significant deterioration of the debtor's credit worthiness occurs.
The prohibition of a fictitious service is not limited to declarations of intent, it also concerns important legal notifications made by the entrepreneur to the consumer which may have adverse consequences for the consumer (e.g. reminder, termination, invoice).
Notifications about changes regarding the general terms, services or fees are important legal notifications.

The Court decided that a clause prohibiting consumers to write down their personal PIN code is void in the sense of Article 3.1. and 4.2. Directive 93/13 (implemented into Austrian law by § 879 Sec 3 General Civil Law Act), because a general prohibition to write down a PIN code is not reasonable.

In the opinion of the Court, this clause is violating Annex I 1.f. and 1. g. Directive 93/13 (implemented into Austrian law by § 6 Sec 2 Cif 1 Consumer Protection Act) regarding contract terminations by the entrepreneur without apparent objective reasons. Such clause may be admissible if the defendant would not only take the change of the credit-worthiness into account but the risk of non-fulfilment of the consumer's debts
(1) Is a fictitious service also prohibited when important legal notifications are concerned?

(2) May consumers be prohibited from writing down their personal PIN code?

(3) Is a clause regarding contract termination in case of deterioration of debtor's credit-worthiness valid?
Full Text: Full Text

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The appeals of the defendant and plaintiff were both admissible but only partly successful.