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CISG CASE PRESENTATION

Austria 13 September 2001 Oberster Gerichtshof (Toiletry kits and attaché cases case) [Supreme Court] [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/010913a3.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20010913 (13 September 2001)

JURISDICTION: Austria

TRIBUNAL: Oberster Gerichtshof [Supreme Court]

JUDGE(S): Dr. Ehmayr (presiding judge); Dr. Schiemer, Dr. Huber, Dr. Prückner, Dr. Schenk

CASE NUMBER/DOCKET NUMBER: 6 Ob 73/01f

CASE NAME: Austrian case citations do not generally identify parties to proceedings

CASE HISTORY: 1st instance LG Linz (GZ 4 Cg 12/00b-9) 23 February 2000; 2nd instance OLG Linz (GZ 1 R 101/00d-14) 28 February 2001

SELLER'S COUNTRY: Austria (plaintiff)

BUYER'S COUNTRY: [-]

GOODS INVOLVED: Toiletry kits, attaché cases and other items


Classification of issues present

APPLICATION OF CISG: Unclear. Reference to CISG provision appears to be dicta.

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 19(2)

Classification of issues using UNCITRAL classification code numbers:

19B [Acceptance of offer with material modificaitons]

Descriptors: Battle of the forms

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/644.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 14 para. 16

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Case text (English translation)

Queen Mary Case Translation Programme

Federal Supreme Court of Austria (Oberster Gerichtshof)

13 September 2001 [6 Ob 73/01f]

Translation [*] by Jan Henning Berg [**]

Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor
[***]

JUDGMENT

1.    The appeal is dismissed in respect to the claim for restitution of 87 hard-sided toiletry kits (no. 109.245) and the restitution of 38 hard-sided attaché cases (no. 109.350).
 
2. The appeal is justified for the remainder. The decision of the previous instance is changed to:

The Defendant has to restitute the following:

- 12,694 fruit baskets (no. 112.332),
- 1,681 ironing boards (no. 109.243),
- 545 toiletry kits (no. 109.958),
- 498 toiletry kits (no. 109.960),
- 710 attaché cases (no. 109.961),
- 700 attaché cases (no. 109.962),
- 28,380 extension leads (no. 111.802),
- 32,635 6-way multiple adaptors (no. 111.803),
- 21,120 3-way multiple adaptors (no. 111.804),
- 1,027 graters (no. 112.333),
- 3,641 drinking bottles (no. 112.334),
- 2,081 bottling jars (no. 112.335),
- 11,682 pocket calculators (no. 114.005),
- 5,846 sticky tapes (no. 114.007),
- 15,337 ink cartridges (no. 114.009),
- 11,405 photograph albums (no. 114.011) and
- 229 springforms (no. 111.801).

3. The Defendant has to reimburse 107,248 AUS (Austrian schillings) (including 13,368 AUS turnover taxes and 27,040 AUS cash expenses) within 14 days.
 
4. The Defendant is liable to pay the costs of the appellate proceedings (73,199.36 AUS (including 5,571.56 AUS turnover taxes and 39,770 AUS cash expenses)) as well as the costs of the further appeal (Revision) (77,105 AUS (including 4,012.50 AUS turnover taxes and 53,030 AUS cash expenses)) within 14 days.

FACTUAL BACKGROUND

On 18 October 1999 [Buyer], a trading company which had been operating superstores, instituted insolvency proceedings. The Defendant attorney [Liquidator] was appointed as [Buyer]'s liquidator.

In the course of a five-year business relationship, Plaintiff [Seller] delivered goods to [Buyer] with annual volumes of about 8,000,000 AUS. There had been at least one order per month. These orders were processed as follows:

An employee of [Seller] presented samples of goods to [Buyer] at their headquarters. During these meetings, "prices were discussed and interest in certain goods was expressed." However, orders by [Buyer] were submitted exclusively in writing after further internal discussions. So-called "allocators" were attached to the written orders. They were used by [Buyer] to indicate how the quantity of a given order should be distributed among its superstores. Both the order forms and the "allocators", which had been used for years, had the following text on the front side:

"... Provided that delivery is effected according to our standard terms of purchase and delivery that are set out on this order form and on the allocator, we order as follows: ...

"General: The attached allocator is an integrating part of this order. ..."

[Buyer]'s order forms further contain the following term on the front side:

"... Payment: Payment less discount and bonus will be effected by bank transfer or dispatch of a voucher cheque only within the calendar week in which the discount period expires. The discount period expires at the end of the calendar week in which a 90-day period after receipt of a proper invoice runs out. The earliest date of receipt in this sense will be the date of complete and proper arrival of the goods.

"General: The attached allocator is an integrating part of this order. ..."

Likewise, the allocator forms contain the following clause printed in slightly smaller characters at the bottom:

"Delivery of the goods ordered is considered as acceptance of our standard terms of purchase and delivery; any deviations are not valid until a corresponding confirmation is issued by our management. ..."

These standard terms of purchase and delivery do not contain any provisions concerning a possible retention of title on the side of [Seller]. However, the order confirmations, bills of delivery and invoices of [Seller] contain sales and delivery conditions (hereinafter: sales conditions) on their reverse side without any reference to them on the front. The relevant term reads as follows:

"1.) Orders: All orders will be accepted or processed in accordance with the following conditions. These are valid also for future deliveries without requiring repeated notification. Orderers express their consent to these conditions through their submission of orders. All agreements, especially oral arrangements with our agents and orders issued by phone call require written confirmation.

[...]

"14.) Retention of title: [Seller] remains owner of the delivered goods until complete payment of the purchase price including all auxiliary fees."

There had never been any talks between [Buyer]'s CEO and/or its employees and [Seller] about the valid stipulation of any standard terms or of a possible retention of title. Following a written confirmation by [Buyer], [Seller], who accepted [Buyer]'s terms of payment, used to prepare a written order confirmation that was sent to [Buyer]'s headquarters until 1996. This was supposed to serve as a written confirmation of delivery dates and quantities, as sometimes [Seller] was not able to deliver the required goods or could not keep the delivery date. Such deviations were communicated using the order confirmations.

At the time of commencement of insolvency proceedings, [Seller] had outstanding claims against [Buyer] of about 5,000,000 AUS including VAT. According to the inventory, which had been ordered by the [Liquidator] and was carried out by [Buyer]'s employees, the goods in dispute delivered by [Seller] had been removed from [Buyer]'s stores when insolvency proceedings commenced in order to be transferred to a shipping company. The [Liquidator] contested [Seller]'s claims to separate these goods from the insolvency volume.

Following the agreed retention of title, [Seller] requested restitution of those goods which were still in stock when insolvency proceedings had been initiated.

[Buyer] mainly argues that [Seller]'s standard terms did not effectively become part of the contract. In the course of business relations over several years with the [Buyer], [Seller] did not contest the validity of their standard terms of purchase, but it delivered and invoiced the goods as required by the order.

The Courts in previous instances denied that there had been an agreement on a retention of title and therefore dismissed the claim.

REASONING OF THE COURT

The supplementary appeal as allowed by the Court of Second Instance under 508 ZPO [*] is insofar inadmissible as single orders do not reach the threshold value of 52,000 AUS. For the rest, appeal is admissible and justified.

a) [Extent of admissibility]

In order to decide on the admissibility of the appeal, several claims that accrued from a common legal or factual context can be combined in a single action according to 55 JN [*], provided that they have already been adjudged by the appellate court (Jud 56 et al.; most recently 1 Ob 199/00x; RIS-Justiz [*] RS0037838). Claims from several, merely similar sales contracts -- as in the present case following separate orders by [Buyer] -- are not to be pooled in one action. According to the leading doctrine even an enduring business relation between two parties is insufficient to assume the said legal or factual context (8 Ob 657/86 = MietSlg [*] 39.782 with further references). The Court of Second Instance properly held that in the light of the invoices, the amount in dispute would not exceed 52,000 AUS for these claims: Claim for restitution of hard-sided toiletry kits No. 109.245 (87 pieces) and claim for restitution of hard-sided attaché cases No. 109.350 (38 pieces), which render a total invoicing volume of 48,780 AUS including VAT. With regard to these positions, appeal under 502(2) ZPO [*] is inadmissible at any rate and must be dismissed.

With regard to those positions which were valued at 260,000 AUS and for which the appeal was held to be inadmissible by the courts in previous instances ( 508 ZPO), further appeal (Revision) is admissible. The [Liquidator]'s appellate response has already been submitted after the change in the admissibility ruling of the Court of Second Instance in the light of the positions that do not exceed a value of 260,000 AUS. As this response comments on all different positions in dispute, a release from the duty to give an appellate response is unnecessary.

b) In accordance with the leading doctrine, any retention of title deviating from 1063 ABGB [*] requires express or implied agreement by the parties (2 Ob 333/00k; 10 Ob 77/00x; both with further references to literature). Undisputedly, there had been no talks between [Seller] and [Buyer] about a retention of title concerning the delivered goods. It must hence be determined if such retention of title -- as the one and only possible basis for restitution claims in the case at hand -- became part of the contract when [Buyer] did not contest the validity of [Seller]'s standard terms. These were printed on the reverse side of the order confirmations as well as on bills of delivery and invoices and provided for retention of title under item no. 14.

In the present case, [Seller] responded to each written order issued by [Buyer] by way of written order confirmation. Just as the issued bills of delivery and invoices, they contained [Seller]'s standard terms which provided for retention of title with respect to the goods. An order confirmation is different from a mere letter of confirmation as the latter merely refers to a past conclusion of contract. An order confirmation, however, constitutes an acceptance of a corresponding offer (here: in writing). Problems accrue whenever the order confirmation does not in its entirety correspond to the previous offer ("modified order confirmation"). This happened in the present case, in which the confirmation contained [Seller]'s standard terms to which there had been no declaration of acceptance by the offeree. In accordance with 869 ABGB [*], this does not in itself lead to a valid conclusion of contract. The modified order confirmation is to be considered as a new offer that might have been accepted by the addressee's silence. Whether such silence to a modified order confirmation can be regarded as an implied acceptance must be determined under the same criteria as silence to a modified letter of confirmation (likewise JBl [*] 1977, 593; different, however, German jurisprudence and literature, cf. Straube/Kramer, HGB [*] I 2, 346 para. 53). For the business relation at hand, [Buyer] usually paid for the goods after having received them. This way of execution of the contract indicates both its validity and the intention that even some dissent on minor issues should not hinder the valid conclusion of each individual contract. Mutual references to conflicting standard terms by either party will have no influence at all on the conclusion of the contract even if they provided that the addressee would accept the offer only under its own standard terms. Usually, parties consider a contract to be concluded at the time of positive response by the seller. In that case, only the conflicting standard term provisions will not have become part of the contract. Aspects not considered by the contract itself are to be determined by way of supplementary interpretation of the contract and by dispositive law (7 Ob 590/90 = JBl 1991, 120 = RdW [*] 1990, 406 = IPRax [*] 1991, 419 (Tiedemann, 424) with further references; 2 Ob 275/99a = RdW 2000, 205 = ecolex [*] 2000, 356 (Thaler); Rummel/Rummel, 864a ABGB [*] para. 3 with further references).

According to persistent jurisprudence, standard terms require effective inclusion into the contract unless there is no special law or regulation concerning their validity (cf. Schwimann/Apathy, 864a ABGB para. 1). Inclusion into the contract is effected by way of reference in the contract's wording; at least an implied designation is necessary (SZ [*] 63/54; 1 Ob 145/99a with further references; 1 Ob 1/00d = EvBl [*] 2001/49). Such implied inclusion is possible only under strict prerequisites (1 Ob 533/94; 1 Ob 278/98h = RdW 2000, 142; 2 Ob 142/00x). However, it has been repeatedly found that an implied consent to the other party's standard terms is to be considered in cases where it is clearly evident that the other party is only willing to contract under its own standard terms (1 Ob 691/86; SZ 61/30; 1 Ob 278/98h). Furthermore, standard terms might have impliedly become part of the contract if the contracting parties had hinted to their terms in the context of a long-term business relation and if there had been no objection at all (SZ 69/265; RdW 1997, 391; 1 Ob 278/98h). Conclusively, silence of a party might under particular circumstances be considered as an acceptance; namely, if that party was obliged to raise an objection in the light of good faith, common usages or the law itself and, consequently, that silence does not reasonably allow for another interpretation. This rule particularly applies to businessmen ( 346 HGB [*]) and if the standard terms contain provisions which are well understood and usual in trade. Following persistent jurisprudence, an implied agreement on retention of title can be assumed when invoices, bills of delivery, et seq. contain such provisions over and over again and if the buyer accepts them without having raised any objection (HS [*] 10.560; RdW 1997, 391; RIS-Justiz [*] RS002029; RS0014529; Rummel/Aicher, 1063 ABGB para. 29; Schwimann/Binder, 1063 ABGB para. 38). Every order issued subsequent to several orders within a long-term business relationship is to be considered on the basis of retention of title as stipulated in [Seller]'s standard terms. This is particularly appropriate if, first, there have been hints to this retention of title already in the order confirmation and second, the buyer was granted a considerable period of payment. As regards a retention of title, [Seller]'s standard terms do not conflict with [Buyer]'s standard terms of purchase which do not contain any corresponding provision and do not even deal with the question of title at all. Therefore, [Seller]'s standard terms constitute a mere amendment to the terms of the contract. In the light of being granted an extended period of payment, [Buyer]'s interests are not substantially affected. Moreover, the retention of title as provided by the standard terms is able to secure major interests on the side of the seller against custody of the goods by a third party, forced sale by third-party creditors and -- as in the case at hand -- a buyer's insolvency.

With due consideration of a long-term business relation between two professional businesspeople, it appears that the missing reference on the front side of the order confirmations to the standard terms printed on their reverse side is not legally significant.

It remains to be determined whether the defense clause in [Buyer]'s purchase conditions (here: "any deviations are not valid before a corresponding confirmation is issued by our management") was capable to effectively appeal against a retention of title contained in [Seller]'s standard terms. If -- as in the present case -- single provisions of standard terms have not been subject matter of negotiations, they are to be interpreted according to their wording. In any case, the standard terms must be considered insofar as their purpose was perceptible for an objective third person. Based on this rule, it is obvious that [Buyer]'s clause in question only refers to particular deviations from its own standard terms. Since [Buyer]'s standard terms of purchase neither referred to a retention of title nor to any other rule concerning passage of title nor provided for exclusion of [Seller]'s standard terms in their entirety, there is no such "deviation" which would be subject to a written confirmation. Therefore, the validity of a retention of title through [Seller]'s standard terms is not affected by [Buyer]'s defense clause. Consequently and in contrast to the decisions of the previous instances, a retention of title has been effectively stipulated in favor of [Seller].

It follows that it may remain undecided whether, in light of Art. 19(2) CISG, there should be made a step towards the "theory of the last word" which is a notion rejected in Austria (cf. Kramer, vor 343 HGB [*] para. 15b). Furthermore, there is no judgment necessary in respect to the issue whether a retention of title constituted a common usage in cases where goods are not already paid for at the time of delivery and whether such retention was an express objection against a corresponding standard term. It has been expressed in the judgment 7 Ob 723/88 = WBl [*] 1989, 224 (Wilhelm) that there was no trade or common usage according to which the seller would automatically reserve title if it granted an extended period of payment.

An alleged acknowledgment of the retention of title and claims for restitution from the side of [Buyer] prior to commencement of insolvency proceedings is not a subject matter of this appeal.

As stated above, the appeal is partially justified.

The decision on costs and expenses is based on 43(2), 50 ZPO [*]. Based on the amount of the awarded claim (1,500,000 AUS), [Seller] is entitled to recovery of its costs and expenses.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Austria is referred to as [Seller] and Defendant of (unknown) is referred to as [Liquidator]. The insolvent buyer is referred to as [Buyer].

Translator's note on other abbreviations:

ABGB = Allgemeines Bürgerliches Gesetzbuch [Austrian Civil Code]; AUS = Austrian schillings [former Austrian currency]; ecolex = Fachzeitschrift für Wirtschaftsrecht [Austrian Journal on Commercial Law]; EvBl = Evidenzblatt [Austrian Law Journal]; HGB = Handelsgesetzbuch [Austrian Commercial Code]; HS = Handelsrechtliche Entscheidungen [Austrian Collection of Commercial Judgments]; IPRax = Praxis des Internationalen Privat- und Verfahrensrechts [German Law Journal]; JBl = Juristische Blätter [Austrian Law Journal]; JN = Jurisdiktionsnorm [Austrian Code on Court Organization]; MietSlg = Mietrechtliche Entscheidungen [Austrian Collection of Judgments on Lease and Hire Contracts]; RdW = Österreichisches Recht der Wirtschaft [Austrian Journal on Commercial Law]; RIS-Justiz = Rechtsinformationssystem desBundes [Austrian Federal Database on Law]; SZ = Sammlung Zivilsachen [Austrian Collection of Civil Law Judgments]; WBl = Wirtschaftsrechtliche Blätter [Austrian Journal on Commercial Law]; ZPO = Zivilprozessordnung [Austrian Code of Civil Procedure].

** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück.

*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.

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