Credit Institutions: No Responsibility for Residual Debt Insurance GT&Cs

Jul 2, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to consider whether a credit institution could be held liable for clauses in the general insurance conditions of a residual debt insurance under section 28 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, hereinafter KSchG).

In the present matter, a consumer protection association expressed concerns regarding several clauses within the terms and conditions of a residual debt insurance offered to customers financing vehicles through loans or leasing agreements. The insurance policies were established as group contracts between the credit institution and the insurers, with all policy conditions exclusively drafted by the insurance companies.

Who qualifies as the ‘user’ of GT&Cs?

Established case law indicates that claims for injunctions under Section 28 of the KSchG are typically brought against the party utilising the clauses in question. While representatives or intermediaries may also be deemed users, merely having an economic interest in the contract’s conclusion is insufficient. Instead, a direct personal interest in employing the specific clauses or a substantial influence over their formulation is required.

Credit institution: No passive legitimacy

The OGH clarified that the credit institution did not act as a contractual party to the insured customers nor as an agent for the insurers. The disputed clauses were independently drafted by the insurance companies, with no input or influence from the credit institution regarding their content.

The OGH found that the credit institution’s roles—such as organising the group, collecting premiums, receiving insurance benefits for loan repayment, or holding an economic interest in preventing payment defaults—only indicated an economic interest in the contract, not a personal interest in specific clauses.

The relationship between the credit institution and the insurers within the group did not alter this assessment. The determining factor was that the insurers independently drafted the contractual terms. Simply having a stronger negotiating position as a group organiser, compared to an individual policyholder, does not render the organiser the author of contractual terms prepared by the other contracting party.

OGH 7 Ob 12/26d (25 March 2026)