OGH on the buyer's conversion right

Oct 6, 2021 Benn-Ibler Rechtsanwälte

When examining the conversion right, the specific contract must be taken into account. The interests of the contracting parties must be weighed objectively on a case-by-case basis. In doing so, a comprehensive weighing of the interests of both parties has to take place.

In the present case, the plaintiff commissioned the defendant with the delivery and installation of sun and insect screens for his family home. It turned out that insects were able to enter the living space through a gap between the insect screen and the window despite the insect screen being closed. The plaintiff demanded improvement from the defendant. The defendant replied that this was a common feature of the model used and that improvement was not possible.

The Supreme Court (Oberster Gerichtshof, OGH) confirmed the decision of the court of first instance to convert the contract and stated the following with regard to the conversion of the purchase contract: The buyer may claim a price reduction or conversion if the seller wrongly and seriously refuses to improve the defective service, even if the seller mistakenly takes the view that there is no obligation to remedy the defect. In this sense, the defendant refused the improvement. He did not comply with the plaintiff's request for improvement, which had been expressed several times, and furthermore he was of the opinion that the delivered sun and insect screen was free of defects.

The plaintiff has the conversion right insofar as the defect is not minor. When examining whether a minor defect exists, the specific contract must be taken into account. The absence of an expressly agreed characteristic is generally so significant that the defect can no longer be said to be minor.

If the plaintiff were denied the right to convert the contract, he would ultimately be forced to limit himself to a price reduction. This would force him to keep a product - albeit at a lower price - that he never wanted, namely sun protection without insect protection, the OGH stated.

OGH 8 Ob 13/21a (03.08.2021)