Some of the commercial “property protectors” themselves admitted to illegality
Vienna (OTS/VKI) – On behalf of the Ministry of Social Affairs, the Association for Consumer Information (VKI) had arrested “Fumy – The Private Circle GmbH” (Fumy), which operates the website “zupfdi.at”, for using several illegal and immoral clauses in its general terms and conditions (GTC ) sued. The Vienna Commercial Court (HG) completely agreed with the VKI in two judgments. Some of the decisions are already legally binding.
Fumy offered via the website “zupfdi.at” to prosecute alleged property disruptions caused by incorrect parking in exchange for a commission. The business model stipulates that the (allegedly) injured parties assign their claims to Fumy and Fumy then sends letters of demand to the alleged troublemakers and asks them to submit a cease-and-desist declaration and to pay 399 euros. This business model was recently recognized as unlawful by the OGH in proceedings – not conducted by VKI – against Fumy’s sister company (“Zupfdi property protection GmbH”) due to a violation of the legal representation monopoly (4 Ob 5/24z).
Independently of this procedure, VKI Fumy had sued due to the use of six illegal and immoral clauses in the general terms and conditions. Fumy gave a “procedural acknowledgment” for three clauses. In other words, the illegality of the clauses was acknowledged by Fumy himself. These clauses essentially concerned the assignment of the property disturbance claims against a “commission” of 50 percent for the person disturbed, the granting of co-ownership of the affected properties and the reversal of the assignment against a “processing fee” of 200 euros. As a result, Fumy was prohibited from using these clauses with a partial recognition judgment by the HG Vienna (dated December 5th, 2023). This partial judgment is now legally binding. This means that Fumy lacks active legitimacy (right to sue) to further pursue claims for property protection.
In its final judgment of February 29, 2024, the HG Vienna confirmed the VKI’s legal opinion, also with regard to the still disputed clauses.
Specifically, the HG Vienna prohibits the use of a clause according to which customers who report a disturbance of property receive a commission of 50 percent of the payment amount in the event of a payment by the disturbers – less unspecified costs and cash expenses. “In its judgment, the Vienna Higher Court shares the VKI’s procedural position that this provision is non-transparent because customers cannot get a clear picture of their contractual position,” explains VKI lawyer Dr. Maximilian Eder. In the same clause it was also stipulated that the claim to commission would be forfeited entirely if the bank details were not provided when reporting the property disruption. The HG Vienna judged this to be grossly disadvantageous.
The court also judged Fumy’s approach to be unlawful in two further points: Firstly, the company required agreements that deviate from the General Terms and Conditions to be in writing. On the other hand, the company claimed a comprehensive exclusion of liability for damage caused by minor negligence.
“The Consumer Protection Act clearly stipulates that the legal validity of informal declarations by consumers may not be contractually excluded if this is to their detriment. The fact that comprehensive exclusions of liability for minor negligence are inadmissible, and in particular for violations of the main contractual performance obligations, is also consistent with established case law. In this respect, these welcome decisions by the HG Vienna are not surprising,” says Dr. Maximilian Eder.
The final judgment is not yet legally binding.
SERVICE: The full text of the judgment is available at www.verbraucherrecht.at/Fumy032024.
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