OGH: Scope of the creditor's duty of verification according to § 7(1) VKrG

Oct 20, 2021 Benn-Ibler Rechtsanwälte

In a decision, the Supreme Court (Oberster Gerichtshof, OGH) examined the admissibility of certain clauses in the General Terms and Conditions (Allgemeinen Geschäftsbedingungen, AGB) of a mail order company. In doing so, it elaborated on the scope of the obligation to check the creditworthiness of a consumer.

In the case at hand, the Association for Consumer Information (Verein für Konsumenteninformation, VKI) demanded that an Austrian online mail order company (defendant) refrain from a certain business practice: When installment payments are offered, creditworthiness is checked by requesting information from a database (credit reference agency). Information on the income and financial situation of the customer, however, is not obtained.

This is exactly what the VKI sees as a violation of Section 7 para 1 of the Consumer Credit Act (Verbraucherkreditgesetz, VKrG), according to which the creditor must check the creditworthiness of the consumer on the basis of "sufficient information". The database query did not allow any conclusions to be drawn about the income and a prognosis decision as to whether the consumer would be able to fulfil his payment obligation.

The OGH did not object to the business practice:

The duty of verification under Sec. 7 para 1 VKrG protects the consumer from irresponsible granting of credit. This involves an assessment of whether the consumer is likely to be able to fulfil the credit agreement without being pushed to the brink of economic existence.

What content the information obtained must have in order to be considered "sufficient" is not further defined in the law. In principle, however, the scope of the duty to inquire depends on the individual case. It depends above all on the amount of the credit, the term, and also the duration of the business relationship between the creditor and the consumer. Both the European Court of Justice (ECJ) and numerous voices in the literature assume that the creditor has discretionary powers here.

According to the OGH, Sec. 7 para 1 VKrG does not impose an obligation on the creditor to obtain information on the consumer's income or financial situation in each individual case in addition to obtaining information from a credit agency.

OGH 6 Ob 48/21h (06.08.2021)