Supreme Court 3 Ob 243/18h, 20.03.2019

This case is about two entrepreneurs who were involved in a lawsuit because the purchased goods (roof tiles) had a defect and the buyer and later plaintiff, for his part, was successfully sued by his contractual partner, a builder, in a previous warranty claim for improvement or replacement.

Two central problems are examined in more detail below: Firstly, the relationship between damages and warranty (in particular the trader’s recourse pursuant to Section 933b ABGB) and secondly, the problem of the inclusion of general terms and conditions.

Background:

The plaintiff roofing company ordered roof tiles from the defendant intermediary for the covering of a roof. The plaintiff had already ordered goods from the defendant several times before, usually by telephone .

The plaintiff had a product catalog from the defendant , but this was not relevant to her as she mainly purchased her products from another supplier. She was not aware that the General Terms and Conditions (GTC) of the defendant were printed in this catalog, which included an exclusion of warranty.

When the bricks were delivered, no delivery bill was handed over on which the GTC were printed. On the invoice for the bricks issued by the defendant one week later for EUR 4,534.79, the GTC were printed on the reverse. It was not clear how many of the delivery bills or invoices formulated in this way had been sent by the defendant to the plaintiff in the course of the business relationship before the order for the bricks was placed.

Although the roof tile model used had a CE marking, it was relatively “unfavorable” in comparison with other models, because in this case a weak point led to water ingress above the usual level. The defect could not be detected without inspecting the roof tile and was therefore not recognizable for an intermediary with the usual level of inspection.

The building owner, who purchased the tiles from the plaintiff, to build the roof, requested the improvement by replacement or re-roofing of the roof from the plaintiff in previous proceedings before the district court and prevailed. The plaintiff then made use of a power of dissolution granted to it, namely the payment of EUR 11,000.00 (the agreed remuneration for work already paid by the client) plus interest, in order to free itself from the obligation to make improvements.

Pleas in law:

The plaintiff now demanded payment of EUR 31,979.00 sA from the defendant, based on warranty (Section 933b ABGB) and damages, for all expenses and costs associated with the purchase of the bricks.

Judgment of the Supreme Court

To the GTC:

According to established case law, GTCs regularly only apply by virtue of express or tacit agreement between the parties. Before concluding the contract, the contracting party must declare its intention to contract exclusively in accordance with its GTC and the other party must agree to this .

A tacit submission of the customer may only be assumed if it is clearly recognizable to the customer that the contractual partner only wishes to conclude the contract in accordance with its GTC and that it has the opportunity to take note of these.

In the present case, the plaintiff ordered the bricks by telephone, as it had often done before . Whether there was a reference to the GTC in this or previous conversations was not claimed by the defendant .

In principle, delivery bills as well as invoices and counter-notes are not intended to be used to submit offers by a partner to amend a contract already concluded .

According to case law, however, the silence of the contracting party can be seen as consent if the contracting party should have spoken in good faith, according to custom or the law and therefore its silence allows no other meaning than the approval.

According to Section 346 of the Austrian Commercial Code (UGB), this applies to entrepreneurs if “mutual commercial transactions” contain clauses that are customary in the trade or self-evident. For example, in the case of a long-standing business relationship in which invoices with the retention of title clause were repeatedly sent without objection, the conclusive agreement of a retention of title could be assumed.

Although the plaintiff had already ordered goods from the defendant “several times and a long time before”, the defendant was only able to prove a single delivery with a delivery bill including a reference to the GTC. Accordingly, the defendant did not succeed in providing evidence of a longer-lasting business relationship for a basis of the GTC, so the GTC did not become part of the contract.

Warranty claim:

Pursuant to Section 933b (1) ABGB, an entrepreneur who has provided a consumer with a warranty can claim the warranty from his predecessor, if the latter is also an entrepreneur , whereby the claim is limited to the amount of his own expenses. On the other hand, there is no other right of recourse against the previous owner covering all of his expenses incurred in this connection . Thus, in the present case, the maximum amount that can be compensated is the purchase price of the bricks (EUR 4,534.79).

The additional expense could only constitute a claim for damages due to consequential harm caused by a defect .

Claim for damages:

Since neither the defendant nor the plaintiff was aware of the defect in the bricks, there was a lack of the required fault for a claim for damages pursuant to Section 1293 et seq. of the Austrian Civil Code (ABGB).

Conclusion:

This case shows two very interesting aspects, on the one hand the differences between warranty and damages and on the other hand the inclusion control of general terms and conditions.

The warranty has an advantage, but also a disadvantage compared to compensation. The advantage is that the warranty is a “no-fault liability for a defect”. Therefore, fault on the part of the contractual partner does not have to be proven, while fault is a mandatory requirement for claims for damages pursuant to Section 1293 ff ABGB. On the other hand, there is the disadvantage that the warranty claim does not cover consequential damages, which must be asserted by means of damages. Whether fault exists always depends on the individual case, such as here “The question of whether a defect must be recognized”.