Plaintiff (a Russian tour operator) assigned defendant (an Austrian incoming agent) to make hotel bookings in Austria. In 2008 when bookings were made on the occasion of the European Football Championship, plaintiff cancelled some of the hotel reservations which led to a dispute over cancellation fees. Finally defendant cancelled some of the disputed invoices and issued a new invoice which plaintiff subsequently payed. Expressing satisfaction over this settlement, plaintiff remitted the requested advance payments for the 2009 winter season. Due to further disputes, plaintiff, however, terminated business relation to defendant. Defendant took the opportunity to set off the remaining advance payments against the controversial cancellation fees related to the 2008 bookings.Plaintiff claimed for reimbursement of the advance payments – and succeeded: Supreme Court (OGH) upheld the judments of LG Innsbruck (first instance court) and OLG Innsbruck (appelate court), both granting the claim. Due to the explicit dedication of the advance payments, defendant was not entitled to set them off against disputable previous debts, particulary as plaintiff legitimately could be confident that these had been settled.Jugdement 8 Ob 94/10x of Sep. 22, 2010 available in German here>>.
