Consumer Protection Sec 3 Applies in Reverse Consumer Transactions

Aug 12, 2022 Benn-Ibler Rechtsanwälte GmbH

Part I of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG) not only applies to typical cases where a business is the provider of goods or services within the scope of a consumer transaction. The fact that a consumer holds the position of seller as well does not prevent the Act from applying.

The defendant (the consumer) intended to sell a used car from the estate of his father. However, no agreement was reached with any of the interested parties; though the defendant agreed that one of the interested parties would look around for other potential buyers. A contract of sale was eventually concluded with the plaintiff (a business owner), but the plaintiff did not inform the defendant about his right to withdraw from the contract. Less than six months later, the defendant did declare to withdraw from the contract. While the plaintiff demanded the return of the jeep concurrently with payment of the purchase price, the defendant argued that it had not been he himself, but instead the plaintiff who had made initial contact.

While the court of first instance upheld the claim, the court of appeal did not uphold the complaint. Now, the Austrian Supreme Court ruled as follows:

A doorstep transaction pursuant to Section 3 (1) of the Austrian Consumer Protection Act (KSchG) was concluded between the plaintiff and the defendant. Part I is applicable if a consumer and a business person are involved in the transaction. The court of appeal was correct in stating that the First Part is aimed at typical case constellations. However, it was not possible to see why it would be absurd in principle that the buyer (a business owner) would have to inform the seller (a consumer) about his right of withdrawal according to Section 3 of the Consumer Protection Act (KSchG). The Austrian Supreme Court referred to the relevant materials. Reversed roles do not exclude this applicability of this law. However, in this case, the defendant's appeal was rejected because the right of withdrawal cannot be declared if the consumer himself initiates a transaction. Initiating a transaction is an action with the intent of entering into negotiations for the conclusion of a specific transaction. This intention is directed to the subsequent contractual partner and not to a third party. In the present case, the initiating act was carried out by the defendant with the help of a third party, which excludes any right to withdraw from the contract.

OGH 10 Ob 7/22k (24.05.2022)