OGH: Summer Use of Winter Season Passes

Mar 8, 2024 Benn-Ibler Rechtsanwälte

The settlement of a claim for a monetary refund by offering and accepting a substitute service constitutes a service in lieu of payment within the meaning of Section 1414 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).

The defendant, a cable-car operator in a ski resort, had to suspend operations as of 16 March 2020 as a result of the Covid-19 pandemic. Due to the official suspension of operations, the time allowed to use the 2019/20 season pass was shortened accordingly.

The defendant cable-car operator offered their customers an extension of the season passes (‘summer use’) as compensation for the loss of use during spring. The company also promoted this offer with an intensively-launched information and advertising campaign. Supplementary General Terms and Conditions published on the cable-car company’s website stated that accepting this offer would mean waiving any right to compensation.

The plaintiff, an association with legal capacity, claimed against the defendant the reimbursement of part of the fee paid for his season pass assigned to the plaintiff by a consumer. The defendant contested the claim for partial reimbursement on the basis of Section 1447 of the ABGB, arguing that the consumer had implicitly consented to summer use of his season pass.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the dismissal of the claim and ruled on the manner in which it was dismissed:

Performance in lieu of payment pursuant to Section 1414 of the ABGB replaces the original performance by mutual consent and thus alters the obligation to perform. The obligation is extinguished by the handover and acceptance of the substitute goods.

In principle, a strict standard must be applied when assessing whether there is an implied declaration of intent pursuant to Section 863 of the ABGB. During the extended operations period from 29 May to 2 August 2020, the consumer used the season ticket on 27 days. Taking into account all the circumstances, the actions of the consumer, who made use of the replacement service offered, can correctly be regarded as a waiver of reimbursement of the pro-rata claim.

OGH 5 Ob 120/23t (19 December 2023)