• Rechtssachenbeschreibung
    • Nationale Kennung: 4 Ob 522/95
    • Mitgliedstaat: Österreich
    • Gebräuchliche Bezeichnung:N/A
    • Art des Beschlusses: Sonstiges
    • Beschlussdatum: 25/04/1995
    • Gericht: Oberster Gerichtshof
    • Betreff:
    • Kläger:
    • Beklagter:
    • Schlagworte: Rechtsprechung Österreich Deutsch
  • Artikel der Richtlinie
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, ANNEX I, 1.
  • Leitsatz
    1. Die Klausel in AGB „Für Schäden durch Dritte wird nicht gehaftet“ ist zulässig.
    2. Die Klausel in AGB „Die Garage haftet für Schäden nur, soweit sie nachweislich von ihr oder ihrem Personal verschuldet wurden“ verstößt gegen § 6 Abs 1 Z 9 KSchG und ist daher unzulässig.
    3. Die Klausel in AGB „Die Garage haftet für Schäden nur, wenn der Anspruch vor dem Verlassen der Garage (unter Vorzeigen von Einstellschein oder Quittung) gemeldet wird“ verstößt gegen § 879 Abs 3 ABGB und ist daher unzulässig.
  • Sachverhalt
    The Austrian Consumers’ Association brought a class action under §§ 28 ff KSchG against a supplier who ran a large car park – it was secured by an automatic barrier and a short-stay ticket had to be taken from the machine on entry. The Association applied for an injunction order against clauses used by the defendant in his STCs that the Association considered illegal or in breach of good moral practice. As the third and final court of referral in the case (both the Court of First Instance and the Court of Appeal upheld the claim in its entirety), the OGH ruled as follows on the individual clauses under examination:
  • Rechtsfrage
  • Entscheidung

    “We are not liable for damage caused by third parties.”
    Short-stay parking contracts are rental agreements. The car park owner must provide the customer with a parking space and ensure that this is properly organised. He is obliged to take reasonable security measures under the circumstances, such as monitoring continuously the vehicles entering and leaving the premises and periodically patrolling the car park. If he fails to do this and the customer suffers damage as a result, then the car park owner is liable both for his failure and for that of his assistants. However, the law does not provide for any liability where the damage is caused by third parties. Thus, the clause absolving the owner of liability does comply with § 6 para 1 line 9 KSchG.
    “The car park is only liable for damage when there is proof that it has been caused by our staff.”
    By restricting liability only to damage demonstrably caused by the car park and/or its staff, any damage caused by assistants who are not employees of the car park – even if deliberate or the result of gross negligence – is excluded. This is because an assistant can equally be an independent and unconnected supplier, while “staff” refers only to assistants who have a work or employment relationship with the supplier. Thus, the defendant is not permitted to limit liability just to damage caused by him and/or his staff (§ 6 para 1 line 9 KSchG).
    “The car park is only liable for damage when a claim is made before the customer leaves (and on production of a ticket or receipt).”
    The defendant is limiting his liability to damage reported to him before the customer leaves. The law does not provide for any such restriction, hence the customer was entitled in principle to make a claim within the 3-year period laid down in § 1489 ABGB. The requirement to report any damage prior to leaving the car park is not tantamount to excluding liability as per § 6 para 1 line 9 KSchG because it is generally possible for the customer to check the car before leaving the premises. However, this requirement does substantially restrict the customer’s legal right to make a claim for the damage. The car park owner has no good reason for making it more difficult for the customer who has suffered damage to make a claim, especially since, under the burden of proof regulations, the customer must prove that the damage was caused by the owner and/or his assistants. This becomes progressively more difficult to prove the more time elapses between the point at which the damage was sustained and the point at which the claim was made. There was therefore no reason for restricting the customer’s right in that way; the unjustified deviance from the law grossly discriminated against the customer. The clause was thus invalid as it contravened § 879 para 3 ABGB.

    Volltext: Volltext

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