Legal Updates

Liability issues

Payments via credit cards are conducted as “pull-payment-transactions”, which are payments initiated by or via the recipient of the payment. The bank of the recipient of the payment is initially liable for “pull-payment-transactions” until the bank of the payer is informed of the payment order. From this point on the bank of the payer is liable for all errors which occur until the payment is received by the bank of the recipient. This liability applies regardless of fault for the amount of the omitted or incorrectly transacted payment as well as fees and interests.

1. August 2017

Where were you pointing?

The civil liability for prospectuses is usually determined according to the law of the place where the tort was committed (lex loci delicti). In a recent decision, the Austrian Supreme Court for civil matters ruled that – for civil liability for prospectuses – the law of the marketing place shall be decisive. According to this, the place for which the prospectus was produced and where it was used, shall determine the applicable law. (4Ob112/15x)

18. July 2017

Interest adjustment clauses: banks don’t get to keep the margin

An interest adjustment clause in a loan agreement usually consists of a reference interest rate and an interest margin. Since reference interest rates are currently so low and with several indices even dropping below zero, it is possible that in sum the total interest rate drops to zero. However, according to the Supreme Court for Civil Matters, charging the consumer with the margin “in any event” violates the Consumer Protection Act. The bank is however at least not obliged to make payments to the borrower (“negative interest rate”). (8Ob101/16k)

27. June 2017

Regardless of how you do it…

According to the Consumer Protection Act, consumers who take on the liability of a loan as co-debtors, bailsmen or guarantors have the right to certain information. The loan granting bank must inform them, inter alia about the financial situation of the principal debtor. The Supreme Court for Civil Matters applies these rules also to consumers which provide bank guarantees. A consumer who provides an abstract bank guarantee is just as liable with all of his private assets (vis-à-vis the issuing bank) as is a co-debtor, bailsman or guarantor. (1Ob40/17i)

2. June 2017

Who is responsible?

The Supreme Court for Civil Matters declares a clause of general terms and conditions of a bank as invalid. The clause in question transfers the liability in case of breach of due diligence obligations or participation in an unauthorized use by the cardholder completely onto the cardholder. The clause did not take into account a possible contributory negligence of the credit card company. Also, the liability of the card holder extends to damages which may occur after a notice of loss or robbery. Both violates the regulations of the payment services act (9Ob46/16d).

9. May 2017