In its decision 1 Ob 209/16s, the Supreme Court provided important answers for the first time after the ECJ’s decision, which was described as a bombshell, on questions of application that arise for Austrian law with regard to the defense of disproportionality pursuant to Section 932 (4) ABGB.
The plaintiffs as consumers had ordered natural stone slabs from the defendant as a contractor, which first had to be imported by the latter. The measurement was carried out by the defendant’s employees and the installation was carried out by the plaintiffs themselves. The sauna area and outdoor seating area were also to be included in the calculation and everything was to be laid in the same uniform appearance. As a result, the defendant delivered an insufficient number of natural stone slabs and the plaintiffs installed them. The subsequent deliveries clearly differed visually from those from the installed delivery and could no longer create a uniform structure and color pattern.
The plaintiffs wanted the costs for the removal and reinstallation, including tile replacement material and the associated installation, gardening, electrical and sealing work, etc. under the title of warranty and damages totaling EUR 129,864.69 sA.
The court of first instance found the claim to be justified at EUR 120,954.50. The court of appeal amended the judgment of the court of first instance to dismiss the claim in its entirety. The Supreme Court allowed the appeal to supplement the facts of the case.
From a legal point of view, the Supreme Court stated that a seller who delivers a defective item must, as part of the replacement, remove it at his own expense and install the defect-free item or pay compensation to the buyer – who has installed the item in good faith in the meantime. Even in the case of high removal and installation costs, the seller may not refuse the only possible primary remedy; however, he may demand a reduction of his obligation to the reasonable contribution to be determined on the basis of the contract, taking into account the object and purpose with regard to the value of the item in contractual condition. If the buyer does not make a reasonable contribution to the costs, the seller does not have to carry out the replacement or improvement alone, pay for it or advance it. If the removal and installation costs to be borne by the seller would involve a disproportionately high expense for the seller, the buyer may be limited by the seller to the secondary remedies and only claim a price reduction or rescission.