OGH: No Interest on Key Deposits

Apr 21, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that clauses in general terms and conditions are lawful stating that fees for bank-deposit safe keys do not have to earn interest.

In the original proceedings, the Austrian Consumer Information Association (Verein für Konsumenteninformation, hereinafter VKI) had sued a bank. The matter in question was a ‘notice on prices and conditions for bank-deposit safes’, according to which deposits of EUR 200 or EUR 120 were required for the issuance of bank-deposit safe keys. The notice contained the following clause:

‘The deposit will be refunded without interest upon proper termination of the rental agreement.’

The VKI considered this clause to be non-transparent under Section 6(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG), grossly disadvantageous under Section 879(3) of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) as well as surprising and disadvantageous within the meaning of Section 864a ABGB.

The OGH, however, found the clause to be unobjectionable, as follows:

Firstly, the law only knows an obligation to invest or pay interest on security deposits within the area of tenancy law. According to Section 16b of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG), landlords are required to invest and accrue interest on deposits both in the partial and comprehensive scope of legal application. Outside the MRG, any obligation to provide interest is based on the principle of good faith.

However, the general law of obligation does not provide for such duties, especially not within the scope of rental contracts for bank-deposit safes.

An analogous application of the duty to pay interest on bank-deposit safe key fees is not warranted. On the one hand, the characteristics of (residential) rental contracts that are relevant for the legal duty to provide interest differ considerably from bank-deposit rental contracts. Housing rental deposits cannot be compared with the comparatively small fees for bank-deposit safe keys, if only because of the absolute amounts of money involved. Thus, this does not constitute a deviation from non-mandatory law.

Additionally, there is no gross discrimination of one of the contracting parties. In the case of the duty to invest and pay interest on a key deposit, any comparatively low return would be offset by considerable administrative expenses.

OGH 5 Ob 110/22w (27.02.2023)