OGH on the "order at best" in online trading

Feb 25, 2022 Benn-Ibler Rechtsanwälte

In the case of online trading, the bank is not obliged to consult the customer if the order is clear, unless the customer indicates that he only wants the order to be executed if there are sufficient funds.

The plaintiffs used the defendant's online trading via a joint clearing account without an overdraft limit. In the specific case, they intended to buy a block of shares. However, the price of the block of shares changed at short notice, so that the plaintiffs bought the package in three tranches of EUR 0.488, EUR 0.50 and EUR 0.529 instead of at the maximum price of EUR 0.50, and the clearing account was overdrawn. They now claimed damages for this.

The General Terms and Conditions of the defendant state: "The bank may refrain from executing transactions in whole or in part if no corresponding funds are available. However, the bank shall be entitled to execute such transactions unless it is apparent to the bank that the customer wishes the order to be executed only if there are sufficient funds."

The Supreme Court (Oberster Gerichtshof, OGH) has already determined that this clause is not to be regarded as grossly disadvantageous within the meaning of Section 879 para 3 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB). Furthermore, the bank may rely on the fact that the customer places a securities order in the knowledge of the circumstances affecting him, i.e. also in the knowledge of a possible initial lack of funds, and also wishes to have this order executed. Cases in which the customer is mistaken about the existing funds will probably be extremely rare. If the customer does not indicate that he wishes the order to be executed only if there is sufficient funds, there is therefore no ambiguity for the bank which would oblige it to enquire. If the bank were nevertheless to be obliged to make enquiries even in the case of clear orders, this would mean overstretching the bank's duty of care, which would generally not be in the interest of the customer, who wants his order to be executed without delay.

Therefore, in this specific case, an inquiry with regard to the funds would neither have served the purpose of the "order at best" (“Bestens-Order“) nor would it have been possible to execute it with the promise to limit the "order at best" to the amount covered.

OGH 8 Ob 31/21y (22.10.2021)