Case law

  • Case Details
    • National ID: 8 Ob 63/05f
    • Member State: Austria
    • Common Name:link
    • Decision type: Other
    • Decision date: 21/07/2005
    • Court: Oberster Gerichtshof (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Consumer Sales and Guarantees Directive, Article 3, 6.
  • Headnote
    1. In assessing whether or not a fault is to be regarded as “negligible” (§ 932 para 4 ABGB), it is essential to weigh up the interests of both parties. This should include an assessment of whether it was proportional and appropriate to revoke the contract with regard both to the consequences for both parties of doing so and the “gravity” of the fault.
    2. In determining to what extent subjective and/or objective factors should be taken into account in assessing the severity of the fault, it is essential to differentiate. The recipient’s subjective attitude (ie his motivation and the aims he was pursuing) should not be taken into account if the supplier could not have been aware of it at the time the contract was concluded. On the other hand, if the recipient’s aim and/or motives for making the purchase were clear at the time the contract was concluded, then it is necessary to consider, alongside the objective gravity of the fault, the recipient’s declared intention for making the purchase.
  • Facts
    The plaintiff, a consumer, bought a factory-new car from the defendant, a car showroom. The car was fitted with an air conditioning unit complete with automatic temperature regulation. The customer had specifically requested this system as she had previously had a bad experience with a manually operated air conditioning unit. When the contract was agreed, there was no discussion of precise specifications, such as the expected performance of the heating unit. After driving some 4,000 km, the plaintiff established that the performance of the air conditioning unit fell short of her expectations on longer journeys. She reported this to the car showroom on several occasions. Despite a number of checks on the vehicle, the showroom was unable to find any fault. No such problems had been reported for the relevant model prior to the case in question. With regard to the heating unit, the vehicle sold to the plaintiff had a similar level of performance to other vehicles in this range. In the case of new high-efficiency diesel engines (the engine that the plaintiff’s car contained), the total heat generated was too low to heat vehicles adequately when outside temperatures were particularly low. The showroom stated that such vehicles were usually fitted with “auxiliary heaters” at the customer’s request and expense.
    Invoking her legal right to guarantee, the plaintiff filed a lawsuit for cancellation of the purchase contract and reimbursement of the purchase price (this included a deduction made by the plaintiff for the savings she had made by using the new vehicle). She argued that, during the summer, the air conditioning unit did not maintain the selected temperature after around an hour of driving (it would drop to between 16 and 18°C). Faced with winter temperatures, the unit was unable to maintain a tempeature of over 20°C irrespective of the temperature at which it had been set. The defendant’s attempt to rectify the problem had been unsuccessful.
    The Court of First Instance rejected the claim. It ruled that there was no evidence of a fault as per the Act on Guarantees, since the vehicle sold to the plaintiff was no worse than other vehicles of this make or in this range. On the basis of the legal opinion it had taken, the Court of First Instance did not ascertain whether the claims made by the plaintiff with regard to the heating performance of the air conditioning unit were borne out by the facts of the case. The Court of Appeal overturned this verdict because the facts of the case had not been properly established and ordered a retrial in the Court of First Instance.
  • Legal issue
    The OGH rejected the appeal lodged by the car showroom (defendant) against the Court of Appeal’s ruling. As per the Court of Appeal’s deliberations, it was to be assumed that if the plaintiff’s claims were proven, then there was indeed a defect. The contract made clear precisely what characteristics or functions were necessary for the promised level of performance to be met. However, this assessment was not to be based solely on the explicit agreements made. Rather, the “characteristics that are generally a prerequisite” of a good or service (§ 922 para 1 sentence 2 ABGB) were regarded as having been tacitly agreed unless there was explicit discussion to the contrary. In terms of assessing whether a characteristic is “generally a prerequisite” of a good or service, it is critical to establish whether the purchaser could reasonably assume that the characteristic was present. There could be no doubt that, in buying a factory-new car, the purchaser could reasonably expect the vehicle to heat the car up to over 20°C when the outside temperature was low. Thus, if there was evidence that the vehicle in question was genuinely unable to heat the car up to over 20°C, then a characteristic that would generally be a prerequisite of the good or service was absent, meaning that vehicle was defective.
    The fact that the heating performance of the car bought by the plaintiff was in line with other models in the range did not in any way alter the outcome, since the only logical conclusion to draw was that a characteristic that would generally be a prerequisite of the good or service was absent in other vehicles in the range. This conclusion was supported by the fact that auxiliary heaters were usually fitted in order to enhance the unit’s heating performance. The argument that these auxiliary heaters were to be paid for by the customer under the terms of the defendant’s contracts could only be used against the plaintiff if she were made aware of the poor heating performance of the unit and the possibility – that many consumers opted for – of having an auxiliary heater installed before the contract was concluded. Had that been the case, then it would have been made clear that the plaintiff could not expect satisfactory performance from the heating unit and thus had to decide whether to cope with the problem or have an auxiliary heater installed. However, in the absence of any such indication, the plaintiff could quite reasonably have expected adequate heating performance and the smooth running of the air conditioning unit.
    On the prerequisite for bringing an action for annulment – ie that the fault in question cannot be “negligible” – the court reached the findings outlined in the headnotes above. As the plaintiff in this case had made clear that she was particularly interested in a specific function (characteristic), it was not possible, in assessing whether the absence of this function constituted a negligible fault, to discount completely the plaintiff’s personal views, which were known to the car showroom. In this case, assuming that the plaintiff’s claims about the heating performance of the air conditioning unit were proven, any weighing up of the interests of both parties had to go in her favour, meaning that the fault could not be classified as merely “negligible”. As with the Court of Appeal’s deliberations, it had to be assumed that the reported defects in the unit’s heating performance significantly limited the vehicle’s usability in the Alps. If it was not possible to heat a vehicle up to over 20°C in cold winter temperatures, this had a significant impact on the plaintiff’s ability to use the car for its intended purpose. It was unreasonable to expect the plaintiff to use the vehicle in this condition. The fact that there was an option to install an “auxiliary heater” (which the defendant did not make use of) did not have any crucial bearing on the case because there was no suggestion that this would remedy the drops in temperature during the summer reported by the plaintiff. Therefore, as with the Court of Appeal’s deliberations, it had to be assumed that it was more reasonable, given the facilities available to it, to expect the car showroom to take back, repair and sell on the vehicle than to expect the plaintiff to continue using it. It was indeed true that the car had lost significant value in the intervening period. However, in weighing up the interests of both parties, it was only necessary to take into account the loss incurred up to the point at which the plaintiff, having had her initial suggestions for remedying the problem rejected (exchange and upgrade), filed for annulment. The fact that the car showroom refused to exchange or upgrade the car and was subsequently the subject of a more far-reaching lawsuit did not entitle it to claim for any loss in the vehicle’s value incurred since the annulment proceedings were brought. In addition, there was the fact that the plaintiff had made clear that she attached considerable importance to a high-grade air conditioning unit and had paid a supplement for it.
  • Decision

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