OGH: Withdrawal from Distance Purchases

Mar 29, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified when the right of withdrawal under Section 11f of the Austrian Distance Selling and Foreign Trade Act (Fernabsatz- und Auswärtsgeschäftegesetz, hereinafter FAGG) is considered to be abusive.

The defendant was interested in an apartment which had been advertised by the plaintiff as a real estate agent. The plaintiff sent her an email in which the defendant clicked on the button "Click here to confirm the agency agreement (...) By clicking on the above link, you are confirming that you wish us to take early action and that you have been provided with proof that you have been informed about consumer and cancellation rights.” Whether she actually received such information could not be established. The defendant then received a new email stating "I wish to take early action and waive my right of withdrawal.” Another email contained information about the apartment, a poorly legible copy of the terms and conditions under the FAGG, and a barely legible ‘cancellation form’. The apartment was not purchased by the defendant. As a result, the defendant terminated the agency agreement.

The plaintiff’s claim was for payment of the agency commission on the basis that the agency had provided its services in full. The defendant argued that the agency’s duty to inform had not been fulfilled. Therefore, the termination was justified.

In all instances, the defendant was vindicated. Finally, the question of whether the defendant’s termination constituted an abuse of rights was referred to the OGH, which ruled:

According to Section 11(1) FAGG, consumers may withdraw from a contract concluded away from business premises within 14 days without giving reasons. If the business has not complied with their duty to provide information (Section 4(1)(8) FAGG) or has not made available a standard withdrawal form, the withdrawal period is extended by twelve months pursuant to Section 12(1) of the FAGG.

 An abuse of rights exists in particular if the intention to cause damage is the only reason for exercising the right or if there is a manifest disproportion between the different interests pursued and the impaired interests of the other party. Withdrawal is an abuse of rights if the consumer enters into the contract in full knowledge of the legal situation, precisely in order to gain an advantage by subsequently withdrawing from the contract.

However, this was not the case, as the defendant’s decision was merely a retrospective decision not to purchase the apartment and not to use the plaintiff’s services.

OGH 8 Ob 119/23t (15 February 2024)