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Austria 17 April 2002 Supreme Court [7 Ob 57/02m] (Animals case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/020417a4.html]

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

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Case identification

DATE OF DECISION: 20020417 (17 April 2002)


TRIBUNAL: OGH [= Oberster Gerichtshof = Supreme Court]

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


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

CASE HISTORY: 1st instance [ - ]; 2d instance Oberlandesgericht Linz (GZ 6 R 184/01y-35) 13 December 2001



GOODS INVOLVED: Animals (agreement to fatten animals)

Classification of issues present

APPLICATION OF CISG: No. The question at issue was whether the CISG applies to an agreement under which one party is obliged to fatten animals. The Austrian Supreme Court refused to accept the case and also cited an earlier precedent to the effect that: "The Convention is not applicable to contracts concerning the refinement of goods."


Key CISG provisions at issue: Article 3(2)

Classification of issues using UNCITRAL classification code numbers:

3B [Scope of Convention: services contracts]

Descriptors: Scope of Convention ; Services

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (German): Austria Supreme Court website [go to <http://www.ris.bka.gv.at/jus/>; check "jus texte" box; enter "7Ob57/02m" as "suchworte"; click "suche starten"]

Translation (English): Text presented below



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Case text (English translation)

Queen Mary Case Translation Programme

Supreme Court (Oberster Gerichtshof)

17 April 2002 [7 Ob 54/02w]

Translation [*] by Veit Konrad [**]

Edited by Jan Henning Berg [***]


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)).


[Buyer]'s appeal

The Court of Appeal (Berufungsgericht) (see: Court of Appeal (Oberlandesgericht) Vienna, Judgment of 5 December 2001, GZ 2 R 41/01s-27) had ruled that [Buyer] forfeited its right for damages as it had failed to bring its complaint about a deficient delivery within reasonable time as required by Art. 39(1) CISG. In its appeal, Plaintiff-Appellant [Buyer] alleges that this ruling stands in contradiction to jurisprudence of the Austrian Federal Supreme Court 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 exists where the seller of the goods has explicitly or impliedly communicated that it was not interested in the buyer's notification within reasonable time. Furthermore, [Buyer] alleged that the Court of Appeal (Berufungsgericht) diverged from Supreme Court jurisprudence by ignoring an agreement of the parties suspending the discretionary provisions of Art. 39 CISG in relation to 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, [Buyer] points out that, during their long business relation, Defendant-Appellee [Seller] had never insisted on notification within reasonable time concerning damages for deficient deliveries. Due to the principle of good faith [Seller] was not entitled to rely on Art. 39(1) CISG. In any event, [Buyer] argues that following Supreme Court jurisprudence (Supreme Court (Oberster Gerichtshof), 2 Ob 191/98x) the guarantee agreement and the common practice of the parties constituted a reasonable excuse in the sense of Art. 44 CISG - hence, the diverging decision of the Court of Appeal is subject to further appeal.


[Buyer] cannot substantiate that its appeal (Revision) concerns either a legal question of fundamental significance as requires § 502(1) of the Austrian Code of Civil Procedure (Zivilprozeßordnung; ZPO) or -- diverging from Supreme Court rulings -- relates to a case of unification of jurisprudence.

It may constitute a reasonable excuse under Art. 44 CISG if the buyer fails to bring its complaint for reasons which excuse a prudent businessman under the principle of good faith, and if it has acted with such care which can be expected under the circumstances, giving consideration to the buyer's subjective abilities. Whether a case falls under this very narrow exception (see: judgment 2 Ob 191/98x; RIS-Justiz RS0111003), 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 which would require rectification by the Federal Supreme Court. However, this cannot be upheld for the case at issue: The guarantee clause dated 13 February 1989 does not expressly suspend the requirements of Art. 39(1) CISG on the basis of its wording. The fact that it does not provide for notification within reasonable time at all shows that there is need for further evidence indicating that the clause was meant to exclude the CISG provisions for the contract (see RIS-Justiz RS0014190). Particular caution must be exercised whenever a statutory right might be impliedly waived. In any event, this would most probably not constitute a legal issue of fundamental significance as demands § 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 First 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.



* 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.

*** Jan Henning Berg is a law student at the University of Osnabrück, Germany, who participated in the 13th Willem C. Vis Moot with the Osnabrück team. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and the 4th Willem Vis (East) Moot.

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