OGH: inadmissible passing on of costs in GTCs

Mar 10, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) had to examine a contract clause used by a retailer in the field of radio, hi-fi, TV and photo articles as well as hearing aids. The clause was intended to entail that the consumer bears the expenses incurred by the retailer in reviewing ultimately unjustified warranty claims (e.g. for the cost estimate). The OGH confirmed the opinion of the lower courts that this clause was grossly disadvantageous to the consumer, so that the use of the clause was unlawful.

In the event that customers claimed defects or made use of warranty claims, the retailer used the following clause: "If it is determined that it is not a no-cost guarantee case or a warranty case, the entire costs (including for the cost estimate) will be borne by the customer".

As the OGH explained, it is not prohibited to assert a claim out of court even if the claim ultimately does not exist.

Even if a consumer wrongly claims warranty and the entrepreneur thereby incurs expenses for the verification of the alleged warranty claim, the consumer does not thereby act unlawfully in any event.

According to the OGH, the expenses incurred by the entrepreneur from the review of the (unintentionally erroneously) asserted warranty claim must, in principle, be borne by the entrepreneur himself.

In the view of the OGH, if the entrepreneur uses a clause such as the one described above, he thereby introduces a strict liability for damages which the consumer would not bear under general law.

However, such liability would be grossly disadvantageous as an unreasonable deviation from general law, which is why the entrepreneur may not apply the clause from the point of view of consumer protection law.

OGH 8 Ob 99/20x (28.01.2021)