16.08.2019
If a natural person carries out certain transactions for the purpose of starting up a future business, these are not yet considered to be part of this business according to Section 1 Paragraph 3 of the Consumer Protection Act (contrary to the general rule that transactions of an entrepreneur that are part of the operation of his business are business-related transactions according to Section 1 Paragraph 1 of the Consumer Protection Act). Consequently, the natural person is not yet acting as an entrepreneur according to Section 1 Paragraph 2 of the Consumer Protection Act with regard to these "preparatory transactions", which is why consumer protection standards apply. The prospective entrepreneur can therefore invoke consumer protection in the event of a dispute. This can be crucial to the decision in individual cases because, for example, the warranty cannot be restricted for consumers or a claim for damages cannot be excluded.
The Supreme Court (6 Ob 82/19f) recently dealt with the question of whether this founding privilege can also be granted to a GmbH under certain conditions: Two people with several years of professional experience in the field of finance and controlling or management had been planning for some time to become self-employed, to set up a "company" and to use it to take over the shares in a target company (i.e. to buy a company via a GmbH). For this purpose, they set up a GmbH and were independently authorized managing directors of the same. They then negotiated the purchase price with the seller for a long time in detail, signed letters of intent and went through a 120-point due diligence list with the seller. They then also carried out the purchase of the company shares with the GmbH they had set up. The contractual partners were therefore not the founding partners themselves, but the GmbH they managed. Clauses limiting the warranty and compensation were included in the purchase agreement. The so-called laesio enormis (a ground for avoidance which, to put it simply, allows for the reversal of the transaction if there is a complete discrepancy between performance and consideration) was also excluded, at least according to the content of the contract.
As a result, the purchase price was not paid in full due to differences of opinion. The seller therefore sued the GmbH and both managing directors personally for payment of the remaining amount. The managing directors of the GmbH defended themselves with the argument that the GmbH was still in the founding stage at the time the contract was concluded and therefore the restrictions in the contract were invalid because the founding privilege according to Section 1 Paragraph 3 of the Consumer Protection Act was applicable and this privilege must also be granted to the GmbH.
The Supreme Court ruled that a GmbH is an entrepreneur by virtue of its legal form and that the “foundation privilege” of Section 1 Paragraph 3 of the Consumer Protection Act is only available to natural persons (OGH 4 Ob 523/95 (RS0065176); 6 Ob 314/02y). The consumer status of shareholders in a GmbH has also already been sufficiently clarified by case law (Man-Commanda, News on the consumer status of GmbH shareholders, Zak 2016, 324). The present case offers no reason to deviate from this case law. Legal persons and shareholders are different legal entities and must therefore be kept separate (OGH 6 Ob 210/15y, RdW 2016, 260 = AnwBl 2016, 240). Since the GmbH is the contractual partner in this specific case, the "foundation privilege" according to Section 1 Paragraph 3 of the Consumer Protection Act cannot be applied because the norm refers exclusively to natural persons.
Legal entities that want to conduct preparatory transactions cannot therefore rely on the founding privilege, even if their founding partners meet the characteristics of a consumer. The GmbH that was sued for the residual price could not rely on consumer protection law.