Case law

  • Case Details
    • National ID: 7 Ob 194/05p
    • Member State: Austria
    • Common Name:link
    • Decision type: Other
    • Decision date: 28/09/2005
    • Court: Oberster Gerichtshof (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 5. Consumer Sales and Guarantees Directive, Article 3, 6.
  • Headnote
    1. A number of minor faults can, in their totality, be so significant that they can no longer be qualified as “negligible” as per § 932 para 4 ABGB.
    2. In determining whether faults are “negligible” as per § 932 para 4 ABGB, it is essential to weigh up the interests of both parties. This must include due consideration of any problems that have emerged as a result of usage and the concomitant loss in the item’s value. The fact that a buyer gives the seller several opportunities to rectify the problem – even though he was entitled to revoke the contract after the first attempt at remedying the fault had failed – does not mean, in the absence of any outstanding payment, that the seller is entitled to reject the consumer’s withdrawal on the grounds that he would now suffer greater losses.
    3. The court also ruled on the question of annulment proceedings in the case of a “banger” (Montagsauto) .
  • Facts
    In October (2004), the plaintiff, a consumer, purchased a new car from a car dealer (the defendant). Immediately after taking delivery of the car, he established, when he went to fill up with petrol, that the petrol gauge did not work. He drove straight back to the car dealer’s garage. There he was informed that the “body computer” was defective and that the fault would take around 14 days to repair. He was given a replacement car for the period in which his vehicle was off the road. Subsequently, he began to detect noises emanating in particular from the rear of the car. As a result, he took the car back to the garage, where the rear wing panel on the passenger’s side had to be clipped back into place, and tests were carried out to check why the car was losing oil, why there were problems with the diesel injection and why there was a noise coming from the rear of the car on the driver’s side. In addition, the rear shock absorbers and rear suspension were replaced, and the windscreen wipers and hatchback door adjusted. Owing to delivery problems with the spare parts, the repair work was not completed until the end of November.
    Over the winter, further problems with the windscreen wipers and wash system emerged. There were also disturbing noises coming from the dashboard. In January, the plaintiff took the car back to the garage, where the steering wheel was recalibrated, the windscreen wipers, wash system and temperature gauge checked, the hatchback door (re)-installed, and the dashboard noises and the problem with oil loss “remedied”. In addition, the right-side windscreen wiper arm and the interior lighting for the glove box were replaced and the driver’s seat frame checked. While the vehicle was being repaired, the plaintiff was once again provided with a replacement car.
    At the beginning of February, it was no longer possible to start the car. Consequently, the plaintiff asked the chief mechanic at the car dealer’s garage to collect the car. He initially rejected the request, citing the costs involved and the conditions of warranty (which did not mention collection). However, given the plaintiff’s furious reaction, the garage did collect the car for further repair work. At the garage, the car’s power consumption was checked, the battery replaced and the noises emanating from the dashboard “remedied”. In the afternoon, the plaintiff was asked to pick the car up from the garage. At this point, he lost his temper and stated that he must either be given a new car or he would have to go to court. He never returned to the car dealer in person, though he did register in writing further complaints about faults with the windscreen wipers and wash system, as well as problems with closing the hatchback door.
    During the court proceedings, further faults were detected: the rear door on the driver’s side was stiff, the car tended to veer to one side when the steering wheel was pointing straight, and the air vanes in the boot were misshapen. In this case (too), it was possible to remedy the faults. The plaintiff could have the necessary work carried out under warranty in any of the car dealer’s registered garages.
    The plaintiff ultimately filed a lawsuit for repayment of the purchase price on return of the vehicle. The Court of First Instance rejected the claim. The Court of Appeal overturned the Court of First Instance ruling and upheld the claim.
  • Legal issue
    The OGH essentially upheld the Court of Appeal’s verdict. For the OGH, the central question was whether the car’s faults should be regarded as “negligible” as per § 932 para 4 ABGB or not.
    After outlining in detail the ruling of 24th May 2005 made by the 1st Senate (1 Ob 14/05y), the 7th Senate of the OGH (presiding in this case) stated that it deemed the 1st Senate’s relevant deliberations on how to interpret the term “negligible” – above all the discussions on the Sale of Consumer Goods Directive and the deliberations that took into account the relevant legal documents – to be sufficiently compelling. However, in the case under examination, it was necessary to explore further the question of the extent to which subjective viewpoints are to be considered (whether primarily or secondarily). This was because there had been no agreements reached by the two parties on any specific requirements or preferences on the buyer’s part, which would be significant in view of the faults in evidence in this case.
    After objectively weighing up the interests of both parties – with reference to the sales contract and the established facts of the case – the OGH stated that it had to concur with the Court of Appeal’s opinion that the faults in question could not be regarded as “negligible” as per § 932 para 4 ABGB. The constant need to recalibrate the steering wheel (because the car would not drive straight) and the disturbing vibrating noises coming from the dashboard did not merely impact on the comfort of driving the vehicle, but also on the car’s safety. This had been a crucial factor in the OGH’s ruling. There was a clear and fundamental distinction between the case under examination here and case 1 Ob 14/05y. In the latter, the (only) fault was that the gearstick’s vibrations caused a clearly audible noise, though only when the engine was cold and when the car was in first or third gear. Thus, while the fault in that case was classified as “negligible” and, as such, did not justify the contract’s being revoked, there were several faults in this case, which taken as a whole, could no longer be viewed as “negligible” as per § 932 para 4 ABGB.
    As highlighted in ruling 1 Ob 14/05y, it was essential, in weighing up the respective interests of the two parties, to take into account any damage caused by usage in the intervening period and any concomitant loss in the item’s value. However, it was equally necessary to take into account the fact that the defendant bore sole responsibility for the failure to remedy what were curable faults despite numerous attempts to do so, which in turn forced the plaintiff to continue using the vehicle over a longer period. The plaintiff could have applied for the contract to be revoked immediately after the first attempt to repair the faults had failed. The fact that he gave the defendant numerous several opportunities to remedy the problems did not mean, in the absence of any outstanding payment, that the seller was entitled to reject the consumer’s withdrawal on the grounds that he would now suffer greater losses.
  • Decision

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