OGH on Brokerage Contracts via willhaben.at

Aug 11, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to decide on the qualification of a brokerage contract as a ‘distance contract’. The crucial issue was that only means of distance communication had been employed in the course of the transaction.

The case in question was a claim by a real estate agent for payment of her agency fee. The defendant had contacted the estate agent via the willhaben.at online platform and asked to view the advertised apartments. The real estate agent emailed him the requested information, including the floor plans. The defendant then went to view the flats. A few days later, he informed the real estate agent via WhatsApp which of the flats he had chosen. The defendant physically entered the estate agent’s office for the first time for the signing of the purchase offer and the commission agreement. Ultimately, however, he refused to sign the preliminary contract due to disagreements about the final price. The plaintiff had not been informed of his right of withdrawal provided for in the Austrian Act on Distance Contracts and Foreign Transactions (Fern- und Auswärtsgeschäfte-Gesetz, hereinafter FAGG). The defendant declared his withdrawal from the brokerage contract in the course of their face-to-face meeting.

It was now necessary to clarify whether a distance contract had been concluded at all, from which it was possible to withdraw in accordance with the provisions of the FAGG.

According to the OGH, a contract concluded at a distance does not require a business transaction in a typical web shop. Accordingly, contracts concluded by telephone or email also constitute distance selling.

For this qualification, means of distance communication must be employed until the conclusion of the contract under Section 3(2) FAGG. A number of different means of communication may be used. FAGG even covers situations in which a consumer visits the business premises only to obtain information about the goods or services and then enters into the contract at a distance.

According to the OGH, the lower courts’ view that the contract in the present case was concluded without the physical presence of both parties and therefore by means of distance communication because of the request for information via an online platform does not constitute a misunderstanding of the legal situation.

OGH 6 Ob 49/23h (17 May 2023)