Case law

  • Case Details
    • National ID: 4 Ob 183/98k
    • Member State: Austria
    • Common Name:link
    • Decision type: Other
    • Decision date: 14/07/1998
    • Court: Oberster Gerichtshof (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 1, 1.
  • Headnote
    1.If, out of curiosity and on his initiative, a consumer takes a closer look at coats on display in a hotel foyer, then he is acting on his own steam and initiating the transaction as per § 3 para 3 line 1 KSchG. This applies even if the supplier made the initial verbal contact and began the sales discussion.
  • Facts
    The Court of First Instance rejected the claim on the basis that the defendant had stated her intention to withdraw properly and within the right timeframe. The Court of Appeal revised the verdict and upheld the original claim. It ruled that the defendant was not entitled to a right of withdrawal under § 3 KSchG since she had initiated the transaction herself by taking a look at the clothes stands with coats in the hotel foyer out of curiosity.
  • Legal issue
    § 3 para 1 KSchG provides a right of withdrawal for situations in which a contract is concluded off the supplier’s business premises. The purpose of this provision is to offset the danger that the buyer may not be equal to the seller’s deft negotiating skills or potentially dishonest sales methods. Thus, the provision is designed to protect the consumer from being caught unawares by a supplier’s dubious practices. It aims to ensure that a supplier cannot tempt a consumer, who would ordinarily have no interest in the goods/services on offer, into ill-advisedly agreeing a contract and to do so by adroitly exploiting the consumer’s weakness in the situation. For that reason, Austrian legislators excluded the right of withdrawal in cases where there would typically be no danger of the consumer’s being caught unawares. One such example is where the consumer himself initiates business contact with the supplier or his representative with the aim of concluding a contract because it is understood that he is acting on his own steam. Therefore, where the consumer’s intention to purchase a given item is not influenced by the seller, the consumer does not require protection.
    What requires protection under § 3 para 1 KSchG is the consumer’s ability to exercise his free will in deciding to take a closer interest in what the supplier is offering. Thus, it is unacceptable for the supplier, off his business premises, to seek to influence the consumer’s desire to enter into contract negotiations with him when in fact all the consumer wants is general information. However, from this perspective, general promotional activity is regarded as permissible.
    In the case in question, the defendant was not approached by the plaintiff’s sales manager in the hotel foyer, with the suggestion that she may wish to view the coats on display there. Rather, out of curiosity and on her own initiative, she decided to take a closer look at the coats on display, meaning that she was acting on her own steam. The fact that the plaintiff’s sales manager uttered the first word and thus began the sales discussion was immaterial. There was no risk that the defendant might be unacceptably caught unawares, because she had already exercised her free will and decided to take a closer interest in what the plaintiff was offering. The defendant was thus in an analogous situation to one in which she might find herself if she were attracted by goods on display in a high street shop window and entered the premises. Therefore, the defendant did not require special protection since she had had ample opportunity to consider whether she wished to make contact with the plaintiff, to take a closer interest in the goods on offer and particularly to negotiate the agreement of a specific contract. Thus, if she herself instigated the concluding of a specific contract, she must bear responsibility for any potential influence this may subsequently have had on his purchasing decision. The Court of Appeal’s view that the defendant initiated business contact with the plaintiff and thus forfeited any right of withdrawal under § 3 para 3 line 1 KSchG was therefore correct.
  • Decision

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