Gruber Notes

Gruber (2005)

Facts

Proceedings between Mr Gruber, domiciled in Austria, and Bay Wa AG ('Bay Wa'), a company incorporated under German law, established in Germany, on account of the alleged defective performance of a contract that Mr Gruber had concluded with Bay Wa.

Mr Gruber, a farmer, owns a farm building constructed around a square ('Vierkanthof'), situated in Upper Austria, close to the German border. He uses about a dozen rooms as a dwelling for himself and his family…. The area of the farm building used for residential purposes is slightly more than 60% of the total floor area of the building.

Bay Wa operates a number of separately managed businesses in Germany. In Pocking (Germany), not far from the Austrian border, it has a building materials business and a DIY and garden centre. The latter published brochures which were also distributed in Austria.

Mr Gruber considered that the tiles delivered by Bay Wa to tile the roof of his farm building showed significant variations in colour despite the warranty that the colour would be uniform. As a result the roof would have to be re-tiled. He therefore decided to bring proceedings on the basis of the warranty together with a claim for damages.

For that purpose, Mr Gruber commenced proceedings on 26 May 1999 before the Landesgericht Steyr (Austria), designated as the competent court in Austria.

Questions

1. Where the purposes of a contract are partly private, does the status of consumer for the purposes of Article 13 of the Convention depend on which of the private and the trade or professional purposes is predominant, and what criteria are to be applied in determining which of the private and the trade or professional purposes predominates?

2. Does the determination of the purpose depend on the circumstances which could be objectively ascertained by the other party to the contract with the consumer?

Holding

Court relied on the following General Principles:

1. Principle of autonomous interpretation

2. Provisions relating to consumer contracts constitute an exception to the general rule under Art. 2 – they must therefore be narrowly interpreted.

3. Provisions relating to consumer contract provide for jurisdiction to courts of the claimant’s domicile, they must therefore be restrictively construed.

4. As held in Shearson Lehmann Hutton, consumer contract provisions are intended for the personal protection of the consumer himself and they are inapplicable to other persons who may sue on behalf of the consumer (same in VFK)

5. As held in Benincasa, Consumer contract provisions apply only when the goods were obtained for the claimant’s personal use alone and not for his business or trade purposes. The nature of the contract is relevant in determing this.

Application to Facts

In that regard, it is already clearly apparent from the purpose of Articles 13 to 15 of the Brussels Convention, namely to properly protect the person who is presumed to be in a weaker position than the other party to the contract, that the benefit of those provisions cannot, as a matter of principle, be relied on by a person who concludes a contract for a purpose which is partly concerned with his trade or profession and is therefore only partly outside it. It would be otherwise only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context...

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