OGH on the obligation to inform about cancellation fees (§ 27a KSchG)

Mar 11, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that a contractor pursuant to Section 27a of the Consumer Protection Act (Konsumentenschutzgesetz, KSchG) must also inform the consumer about any potential savings resulting from not carrying out the work (Sec. 1168 para 1 of the General Civil Code - Allgemeines Bürgerliches Gesetzbuch, ABGB) if he only demands a part of the agreed remuneration ("cancellation fee").

The defendant community of owners commissioned the plaintiff construction company to rebuild a roof structure including insulation. A few days later, the majority of owners decided not to have the work carried out. The construction company was ready to perform according to the contract.

The construction company then demanded 36% of the contract sum pursuant to Sec. 1168 para 1 ABGB. The defendants argued that the construction company could compensate for any loss of turnover with other orders. In addition, according to Sec. 27a KSchG, the construction company was obliged to inform them about their savings and any acquisition through other uses. The defendant contested this, as not the entire remuneration was claimed, which was why Sec. 27a KSchG did not come to effect.

The court of first instance followed the plaintiff's view. However, the court of appeal and the OGH did not:

The clear purpose of Sec. 27a KSchG is to compensate for an information deficit of the consumer, who has hardly any insight into the industry and the course of business of his contractual partner. This information deficit does not change if the entrepreneur voluntarily takes into account savings from not carrying out work, but does not communicate the reasons for this. For the consumer it is then not verifiable whether this voluntary deduction is based on reasonably realistic grounds.

Although Sec. 27a of the KSchG refers to the "entire" agreed remuneration, this only means that the entrepreneur is obliged to provide information on the entire remuneration, even if he only requests a part of it.

OGH 4 Ob 119/21k (23.11.2021)