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CISG CASE PRESENTATION

Austria 17 April 2002 Supreme Court [7 Ob 54/02w] [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020417a3.html]

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

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Case identification

DATE OF DECISION: 20020417 (17 April 2002)

JURISDICTION: Austria

TRIBUNAL: OGH [= Oberster Gerichtshof = Supreme Court]

JUDGE(S): Dr. Schalich (presiding judge); Prof. Dr. Danzl, Dr. Schaumüller, Dr. Hoch, Dr. Kalivoda (accompanying judges)

CASE NUMBER/DOCKET NUMBER: 7 Ob 54/02w

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

CASE HISTORY: 1st instance [ - ]; 2d instance Oberlandesgericht Wien (GZ 2 R 41/01s-27) 5 December 2001

SELLER'S COUNTRY: [-]

BUYER'S COUNTRY: [-]

GOODS INVOLVED: [-]


Case abstract

AUSTRIA: Oberster Gerichtshof 17 April 2002

Case law on UNCITRAL texts (CLOUT) abstract no. 542

Reproduced with permission from UNCITRAL

Abstract prepared by Martin Adensamer, National Correspondent

The dispute concerned the possibility to excuse the buyer under article 44 CISG for failing to give notice of lack of conformity to the seller within the time limit indicated in article 39(1) CISG.

The buyer claimed that a reasonable excuse occurs if the seller expressly or impliedly waives its right under article 39 CISG, and that an implied waiver may be derived from an agreement of guarantee entered into by the parties. Moreover, the buyer claimed that the seller, in the course of their dealings, had not objected to claims for damages filed untimely.

The Court of Appeal denied the applicability of article 44 CISG in the case and the Supreme Court upheld the decision. According to the latter, a reasonable excuse within the meaning of article 44 CISG can be recognized only when the buyer's failure to give notice to the seller of the lack of conformity is due to reasons that would have excused an average buyer in the normal course of business conducted in good faith, provided that the buyer acted with the diligence subjectively expected by it according to the circumstances. This exceptional provision must be interpreted strictly. The decision on the existence of a reasonable excuse of the buyer depends on the facts of the case, and the Court of Appeal's judgement on this point, absent any error, cannot be revised by the Supreme Court.

In the present case, according to the Supreme Court, nothing in the agreement of guarantee could lead to conclude that the seller had waived its right to rely on article 39 CISG; nor such a waiver, in lack of any additional element, could be derived from the absence in the agreement of guarantee of an express reference to the timely notice requirement. Moreover, the Court added that, in principle, a waiver of right may be inferred only from specific circumstances that clearly indicate that this was the intention of the party. The Supreme Court dismissed the case.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 39(1) ; 44 [Also cited: Article 50 ]

Classification of issues using UNCITRAL classification code numbers:

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time];

44A [Excuse for failure to notify]

Descriptors: Lack of conformity notice, timeliness ; Waiver ; Excuse

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Editorial remarks

At issue was whether a seller waived buyer’s obligation to give notice under Article 39 CISG. The Austrian Supreme Court refused to accept the case because appellant was not able to show an important legal question that extends beyond the single case.

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): Click here for pdf of German text

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Supreme Court (Oberster Gerichtshof)

17 April 2002 [7 Ob 54/02w]

Translation [*] by Veit Konrad [**]

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

JUDGMENT

The extraordinary appeal (Revision) does not comply with the provisions of § 502(1) of the Austrian Code of Civil Procedure (Zivilprozeßordnung; ZPO) and thus has to be dismissed according to § 508a(2) of the Austrian Code of Civil Procedure (Zivilprozeßordnung; ZPO) (§ 510(3) of the Austrian Code of Civil Procedure (Zivilprozeßordnung; ZPO)).

REASONING

In its appeal Plaintiff-Appellant [Buyer] claims the judgment of the Court of Appeal (Berufungsgericht) (see: Court of Appeal (Oberlandesgericht) Vienna, Judgment of 5 December 2001, GZ 2 R 41/01s-27) ruling that [Buyer] had forfeited its right for damages as it had failed to bring its complaint about deficient delivery within reasonable time as required by Art. 39(1) CISG, to stand in contradiction to Supreme Court jurisdiction concerning Art. 44 CISG according to which the buyer of delivered goods keeps its rights for damages - or alternatively may reduce the purchase price according to Art. 50 CISG - notwithstanding Art. 39(1) CISG, if it has a reasonable excuse for its failure to give notice. A reasonable excuse in the sense of Art. 44 CISG may be that the seller of the goods has explicitly or impliedly communicated that it was not interested in the buyer's notification within reasonable time. Further, as [Buyer] argued, the Court of Appeal (Berufungsgericht) diverged from Supreme Court jurisprudence insofar as it ignored an agreement of the parties suspending the discretionary provisions of Art. 39 CISG as concerns their contract. [Buyer] maintains that through a guarantee agreement of 13 February 1989 the parties implicitly abandoned the requirements of Art. 39(1) CISG because this agreement did not expressly demand notification within reasonable time. Accordingly, during their long business relation [Seller] had never insisted on notification within reasonable time as regards damages for deficient deliveries. Due to the principle of good faith [Seller] might not justly rely on Art. 39(1) CISG. In any event, [Buyer] argues, following Supreme Court jurisprudence (Supreme Court (Oberster Gerichtshof), 2 Ob 191/98x) the guarantee agreement and the common practice of the parties would constitute a reasonable excuse in the sense of Art. 44 CISG - hence the diverging decision of the Court of Appeal is subject to further appeal.

RATIO DECIDENDI

[Buyer] cannot substantiate that its appeal (Revision) concerns either a legal question of fundamental significance as required by § 502(1) of the Austrian Code of Civil Procedure (Zivilprozeßordnung; ZPO) or diverging from Supreme Court rulings touches upon the unity of jurisdiction.

According to Supreme Court jurisprudence (see: judgment 2 Ob 191/98x; RIS-Justiz RS0111003), it may constitute a reasonable excuse under Art. 44 CISG if the buyer fails to bring its complaint for proper reasons which may excuse an ordinary man under the principle of good faith, and if it was not foreseeable for the buyer that the seller expects notification. Whether a case falls under this very narrow exception depends on the particular circumstances. It is only open to a second appeal (Revision) if the Court of First Appeal (Berufungsgericht) has grossly misinterpreted the facts of a case. However, this is not the case here. The guarantee clause dated 13 February 1989 does not expressly suspend the requirements of Art. 39(1) CISG. As it does not provide for notification within reasonable time at all, there is need for further evidence indicating that the clause was meant to exclude the CISG provisions for the contract (see RIS-Justiz RS0014190). In any event this would never constitute a legal issue of fundamental significance as required by § 502(1) of the Austrian Code of Civil Procedure (Zivilprozeßordnung; ZPO) (see RIS-Justiz RS0107199) for extraordinary appeals. Moreover [Buyer] cannot sustain that the ruling of the Court of Appeal (Berufungsgericht) diverges from Supreme Court jurisprudence (on the cited cases 2 Ob 191/98x in ecolex 1999/98 and 1 Ob 223/99x in ecolex 2000, 565). Therefore the appeal is not admissible.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff-Appellant is referred to as [Buyer]; Defendant-Appellee is referred to as [Seller].

** Veit Konrad has studied law at Humboldt University, Berlin since 1999. During 2001-2002 he spent a year at Queen Mary College, University of London, as an Erasmus student.

*** 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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Pace Law School Institute of International Commercial Law - Last updated July 27, 2007
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