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CISG CASE PRESENTATION

Austria 21 April 2004 (Oberster Gerichtshof) [Supreme Court] (Omnibus case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040421a3.html]

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

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Case identification

DATE OF DECISION: 20040421 (21 April 2004)

JURISDICTION: Austria

TRIBUNAL: OGH [ = Oberster Gerichtshof = Supreme Court]

JUDGE(S): Dr. Schalich (Vorsitz), Prof. Dr. Danzl, Dr. Schaumüller, Dr. Hoch, Dr. Kalivoda

CASE NUMBER/DOCKET NUMBER: 7 Ob 32/04p

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

CASE HISTORY: 1st instance Bezirksgerichts Haag (GZ 2 C 1413/99x-87) 10 June 2003; 2d instance Landesgericht St. Pölten (GZ 36 R 297/03z-93) 23 September 2003

SELLER'S COUNTRY: Austria (defendant)

BUYER'S COUNTRY: Switzerland (plaintiff is buyer's insurer)

GOODS INVOLVED: Omnibus


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 6 ; 36(2) ; 79(2) [Also cited: Article 3(1) ]

Classification of issues using UNCITRAL classification code numbers:

6B [Agreements to apply Convention: selection of law of Contracting State];

36B2 [Lack of conformity occurring after passage of risk: guarantee of continued conformity];

79C [Impediments excusing part from damages: non-performance attributable to third-party contractor]

Descriptors: Autonomy of parties ; Conformity of goods ; Guarantees ; Fault ; Exemptions or impediments

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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): Austria Supreme Court website [go to <http://www.ris.bka.gv.at/jus/>, check "jus texte" box, enter "7 Ob 32/04p" as "suchworte", click "suche starten"]

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation)

Queen Mary Case Translation Programme

Federal Supreme Court of Austria (Oberster Gerichtshof)

21 April 2004 [7 Ob 32/04p]

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

Edited by Todd Fox [***]

FACTUAL BACKGROUND

I. The previous Defendant [Seller] N____ GmbH [*] changed its identification through a corporate reorganization into M____ OHG [*] by virtue of §§ 2 et seq. UmwG [*] and was removed from the commercial register. [Seller] pointed to this circumstance in its appellate response. In accordance with § 235(5) ZPO [*], [Seller]'s description needed to be corrected procedurally through resolution by the Court. For the sake of simplicity, without making any special distinctions, the Court will just refer to the Defendant as [Seller] in this dispute.

II. [Seller] is an Austrian distributor of omnibuses that are produced by [1st Intervening Party] in Germany. The [2nd Intervening Party] is a supplier of the air condition units installed in these omnibuses. On 3 April 1997, Peter J. as CEO of the Swiss company J____ AG [*] [Buyer] ordered two buses from [Seller] for a gross price of €345,367.47 each. As a consequence of internal corporate guidelines, [Seller] was merely authorized to sell these buses within Austria, but not yet to foreign buyers. Therefore, the name of [Buyer] was crossed out in the order form and replaced by A____ GmbH, whose shareholder had also been Peter J, but who lacked executive authority in that company. [Seller] knew that its business partner was not A____ GmbH. The parties needed to construct a sales contract between [Seller] and A____ GmbH in order to permit a sale of these buses to [Buyer] in Switzerland. This was a situation in which [Buyer] could purchase the buses from [Seller] in Austria cheaper than in Switzerland. However, the vehicle that is the subject of the present proceedings was never actually acquired by A____ GmbH.

As the type of bus that was ordered, a "Neoplan N 117 Spaceliner" bus, was to be delivered to Switzerland, [Seller] had adapted it to comply with Swiss statutory vehicle regulations. The new bus was delivered on 18 March 1998 and [Seller] issued a first guarantee for two years or 200,000 km on the engine, gearbox and rear suspension, and a second guarantee for 18 months or 50,000 km on the rest of the vehicle except for parts subject to wear and tear. Although A____ GmbH was listed as transferee on the invoice, the bus was actually received by one of [Buyer]'s employees at [Seller]'s headquarters and was then taken to Switzerland. As it had not been possible to get an immediate registration for the bus in Switzerland and A____ GmbH lacked the necessary license to employ this kind of vehicle, S_____ GmbH made its license available so that the bus could finally be registered for the latter company with an Austrian license plate number. S____ GmbH, as registered owner, then concluded an insurance contract with comprehensive coverage with the present Plaintiff [Insurer].

In order to complete the chain of sales contracts to [Buyer], a "pro forma" sales contract was concluded between A____ GmbH as seller and [Buyer] as purchaser on 16 June 1998. The contract was signed by Peter J. for both parties. The purchase price was paid to [Seller] by a bill of exchange (to be settled by 18 June 1998). This bill of exchange mentioned A____ GmbH as beneficiary. However, it was signed by Peter J., who once again lacked power of representation. The purchase price was financed by the Swiss corporation U____ AG [*] in the form of an installment contract, according to which the comprehensive insurance should be assigned in favor of U____ AG. According to U____ AG's standard terms, title to purchased goods will be transferred to U____ AG at the time when delivery is effected to [Buyer]. [Buyer], in turn, would assign any possible insurance claims to the respective owner and [Buyer] would bear the risk of non-insurable depreciation or destruction of the purchased items. After conclusion of the installment contract between [Buyer] and U____ AG, the latter transferred the purchase price to A_____ GmbH, who then forwarded the funds to [Seller]. Until the later occurrence of damage, [Buyer] paid monthly installments of Sfr.7,997 [*].

In the beginning of August 1998, [Buyer] ran a trip to Denmark with the said omnibus. On 12 August 1998, the bus driver noticed that the inside temperature could only be cooled down to 28 degrees Celsius but not down to 25 degrees, as had been usual. Since there had not been any error alert message on the display of the air-conditioning unit, he attributed this circumstance to higher outdoor temperatures of between 32 and 38 degrees. During the afternoon, the bus had been parked at Castle Amalienborg in Copenhagen with the ignition switch left at "on" by the driver. After the bus had been parked for approximately five minutes, smoke emitted from the air-conditioning unit, which was mounted on the rear roof of the bus. After unsuccessful attempts to extinguish the fire, the bus burned down in its entirety. The cause of the fire was the improper installation of the air-conditioning system (for details see First Judgment pp. 13 et seq.). It could not be determined whether the faulty installation was performed by [1st Intervening Party] or [2nd Intervening Party]. After the fire of 12 August 1998, Plaintiff [Insurer], as vehicle insurer, paid U____ AG the sum of €234,388.06 from the insurance contract. Extinguishing the fire, towing, recovering and transporting the wrecked vehicle cost another €826.72, and the expert's report on the cause of the fire cost an additional €9,708.51. These sums had been paid by Plaintiff [Insurer] as well. After having received payment from the insurance contract in the amount of €234,388.06, [Buyer] settled the remaining claim from the installment contract with U____ AG. Therefore, U____ AG has no further claims from financing of the bus.

[Buyer] had already initiated proceedings against [Seller] on 10 February 1999 in the District Court of St. Pölten seeking recovery of damages suffered from the fire in an amount of Sfr.199,762 (Case docket no. 1 Cg 21/99p). However, both parties to that dispute jointly declared by common submission dated 10 September 1999 that proceedings should be finally settled.

In an action brought before the District Court of St. Pölten [Court of First Instance] on 11 February 1999, Plaintiff [Insurer] claimed recovery of the insurance sums of 3,370,228 Austrian schillings from [Seller] plus 4 % interest since 1 January 1999. Plaintiff [Insurer] alleged that [Seller] was responsible for any damages caused by the fire on the basis of its contractual warranty and culpable conduct (insufficient technical equipment). The claim was expressly based on provisions of the UN Sales Law (CISG).

[Seller] objected by contesting the subject-matter jurisdiction of the Court of First Instance, as well as the merits and amount of the claim. [Seller] alleged its contracting partner was [Buyer]. [Seller] alleged that there were no claims which had been subrogated to Plaintiff [Insurer]. Any contractual warranty could only be claimed by a party to the sales contract. Moreover, [Seller] had not committed any fault as it acquired a brand-new vehicle from a renowned producer and the vehicle had not been modified at all. Consequently, there was no legal basis for "direct liability" to Plaintiff [Insurer] by [Seller]. The sales contract explicitly provided that Austrian law should apply, which excluded application of the CISG. Both [1st Intervening Party] and [2nd Intervening Party] intervened in the proceedings on the side of [Seller].

RULING IN FIRST INSTANCE

The Court of First Instance held that [Seller] was obliged to compensate [Insurer] in the amount of €244,923.29 plus 4 % interest since 26 February 1999, and dismissed a further request for an additional amount of €0.73 plus interest. The factual basis abstracted above was interpreted by the Court of First Instance in a way that [Seller] had delivered defective goods. Therefore, it culpably breached contractual obligations and was responsible for any consequential damages. [Seller] had failed to prove that it was neither aware nor should have been aware of the defect or that it was not able to cure it. The deal with A____ GmbH [*] was a sham transaction; actually, [Buyer] was party to the contract with [Seller]. [Buyer] had assigned the vehicle's comprehensive coverage insurance to U____ AG, which had financed the sales transaction. Thus, the Plaintiff [Insurer] had a justified basis to reclaim the insurance sum that was paid out.

RULING IN SECOND INSTANCE

The Appellate Court allowed [Seller]'s appeal and amended the previous judgment such that Plaintiff [Insurer]'s claim was dismissed in total. It further held that a regular revision was admissible. The Appellate Court adopted the factual findings from the Court of First Instance and stated the following legal reasoning:

[Seller] undisputedly acted as a dealer. It acquired a factory new omnibus from an auto producer with which it had enduring business relations. Contrary to what was held in the First Instance, the Appellate Court could not establish any culpable conduct by [Seller] when it re-sold the omnibus. The taking of evidence had not established any indication that defects of the air-conditioning unit could possibly have been detected prior to the occurrence of damage. Dealers could not be burdened with the obligation to technically examine all seemingly harmless parts of factory new goods before their re-sale. It clearly followed from the expert's report and the factual findings in the First Instance that the installation of the air-conditioning system into the bus was a very complex procedure; therefore, defects were not recognizable by [Seller]. [Seller] furthermore was not required to have reckoned with such a defect. Moreover, it must not be overlooked that the vehicle had already been in use for almost five months without the defect having attracted any attention. The Court of First Instance had not allowed [Seller] to provide counter-evidence, yet it refrained from stating where it may have found negligent conduct on the side of [Seller]. In the event the [Seller] was able to prove that it did not act negligently with regards to the existence of the defect, to be exempted from liability [Seller] would then need to substantiate that it was neither aware of nor should have been aware of the defect and that it was not required to have reckoned with such a defect. By so doing, the [Seller] proved that it was not responsible for the defect, meaning that there is no breach of reasonable care on [Seller's part even though the defect existed. According to the opinion of the Court of the Second Instance, [Seller] fulfilled these requirements. Therefore, at least pursuant to the provisions of the ABGB [*], [Seller] is not liable for damages arising from the fire.

The parties did not dispute the applicability of Austrian law. The CISG, being part of the Austrian legal system, would thus apply to this dispute. Basically, it must be noted that liability of the parties under the CISG exceeds that under the ABGB. Liability for damages from breach of contract -- pursuant to the CISG -- does not require fault of the party in breach. Rather, the CISG features a system of strict liability from which the debtor can, however, exempt itself from liability to a certain extent. Art. 79(1) CISG provides that a party is not liable for a failure to perform any of its obligations if it proves that the failure was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. The already discussed criteria for an exemption from liability pursuant to the ABGB seem to be adequately meet the requirements of Art. 79 CISG. [Seller] had not installed the air-conditioning unit; therefore, the defect that arose with its installation was beyond [Seller]'s control. Moreover, it could not be reasonably expected from [Seller] to have examined the installation, especially since considerable technical efforts would be necessary and [Seller] was not expected to reckon with any such defect. At the time of conclusion of contract -- the relevant point in time under the CISG -- [Seller] was not expected to take the impediment (to proper performance) into account. Therefore, it could not be expected from [Seller] to have used reasonable measures to avoid or overcome it. Art. 79(2) CISG governs cases where non-performance by one party is due to a failure to perform by a third party, which is the case in this dispute. Of course, the provision's application further requires that the third party be engaged to perform the whole or a part of the contract. There is no doubt in the literature and jurisprudence that "third persons" in terms of Art. 79(2) CISG refers to persons assisting in performance. Yet it must be determined whether "third persons" also refer to those persons who are not engaged in order to effect performance to the obligee, but whose performance constitutes a mere auxiliary precondition so that performance could be effected by the obligor himself. The majority opinion in the literature holds that in such cases the obligor would be able to exempt himself pursuant to Art. 79(1) CISG if this provision's prerequisites were met. According to a part of the literature, this provision refers to suppliers in particular. Even applying the strictest of opinions would not help Plaintiff [Insurer], because any potential buyer -- thus, A____ GmbH as well as [Buyer] -- must have been aware that [Seller] could only have acquired the bus from the German producer ([1st Intervening Party]). Therefore, [Seller] had no possibility to choose its supplier.

Consequently, the [Seller] successfully exempted itself from liability, both under provisions of the ABGB and under the CISG. It may therefore remain open whether and how any possible claim against [Seller] was subrogated to Plaintiff [Insurer]. Furthermore -- yet without any legal significance -- it may be noted that although the Court of First Instance qualified the complex contractual transactions as a circumvention rather than a sham transaction, all involved parties intended to achieve the exact legal consequences which their declarations had caused. However, § 916 ABGB is not applicable to such circumvention transactions. As was stated in the above reasoning, [Seller] was not liable for damages which Plaintiff [Insurer] had settled in the context of the comprehensive-coverage insurance. Therefore, appeal was justified; the challenged judgment needed to be amended to dismiss Plaintiff [Insurer]'s claim.

Regular appeal on points of law to the Federal Supreme Court was admissible as there did not appear to be any jurisprudence on the issue of whether suppliers of a dealer were to be considered as "third persons" in terms of Art. 79(2) CISG. Moreover, the literature offers a variety of opinions. Therefore, resolving this question of law bears significance beyond the particular dispute at hand.

POSITION OF THE PARTIES

Plaintiff [Insurer] appeals the judgment in the Second Instance. It alleges deficiencies of the ruling and an incorrect legal assessment as the basis for the appeal. Plaintiff [Insurer] seeks amendment of the judgment of the Second Instance and to restore the judgment of the First Instance.

[Seller] requests in its appellate response that Plaintiff [Insurer]'s appeal be dismissed (as lacking issues of legal significance). Alternatively, [Seller] seeks dismissal of the appeal on the merits.

REASONING OF THE FEDERAL SUPREME COURT

The appeal is admissible and justified.

The alleged procedural deficiencies are not apparent. It is submitted by [Seller] that it was "surprised" by the Appellate Court's position as to interpretation of Art. 79 CISG, and that the relevant questions of law pertaining to this position had not been discussed in the First Instance. According to § 510(3)(2) ZPO [*], it may suffice to refer the party initiating the appeal to the fact that its own written submissions were (also) expressly based on the provisions of the CISG. Consequently, Plaintiff [Insurer] can hardly be surprised by the previous instances when their legal assessment is founded on this aspect.

Plaintiff [Insurer]'s submissions regarding an incorrect legal assessment as ground for an appeal can be summarized as follows:

Plaintiff [Insurer] primarily challenges the exemption from liability of [Seller] by relying on impediments beyond its control (in terms of Art. 79(2) CISG) which could only be attributed to the intervening parties. However, such an exemption was neither provided for nor asserted. [Seller] and [1st Intervening Party] insofar even formed an economic unit in terms of parent and subsidiary company structures "with full authority to issue directives." Therefore, [Seller] could not exempt itself through any failure on the side of its suppliers; instead, it was liable for their failure. In addition to that, [Seller] was also liable based on the warranty it issued and finally also based on a statutory contractual warranty (including consequential damages) under the ABGB [*].

The Federal Supreme Court has decided as follows:

Since the hearing of 4 April 2000, it is undisputed among all parties involved "that Austrian law is to be applied to the sales contract at hand." Such choice of law (see §§ 11, 35 IPRG[*] is admissible in the entire field of the law of obligations (§ 35(1) IPRG; Rummel/Schwimann, ABGB, § 11 IPRG para. 2), and may be made even in the course of proceedings (§ 11(3) IPRG; Rummel/Schwimann, ABGB, § 11 IPRG para. 3), but may not thereby impair the legal position of third parties. Since the parties involved in this dispute ([Buyer], A____ GmbH, U____ AG and S____ GmbH as Plaintiff [Insurer]'s re-insurer) are third parties in terms of this provision, it can already be concluded that the Appellate Court rightfully assessed the dispute not solely on the basis of the ABGB. The Appellate Court (and also Plaintiff [Insurer] during the proceedings in the Second Instance) properly recognized that the Convention on Contracts for the International Sale of Goods (CISG) is applicable to contractual relations between [Seller] and [Buyer]. The CISG entered into force for Austria on 1 January 1989 (BGBl [*] 1988/96), and for Switzerland on 1 March 1991 (Honsell, Kommentar zum UN-Kaufrecht [Commentary on UN Sales Law], 1090). These parties concluded a contract for the sale of goods while each party had its place of business in a different Contracting State. (Art. 1(1)(a) CISG) and application of the Convention was not contractually excluded pursuant to Art. 6 CISG. The CISG as part of Austrian law (Rummel/Reischauer, ABGB, § 932 para. 20c) itself provides the substantive law (RIS-Justiz [*] RS0112333; 1 Ob 74/99k; 6 Ob 311/99z; Koziol/Welser, II 12, 170). Also so-called "work delivery contracts" (for the supply of goods to be manufactured or produced) are subject to the Convention (Art. 3(1) CISG), which, however, needs no further elaboration here, since [Seller] and [Buyer] had concluded a pure sales contract. However, under Art. 79(5) CISG the parties are not hindered from exercising a different remedy than damages under this Convention.

As the relevant and primary basis for liability, the Federal Supreme Court considers the written (exhibit B from the prior instances) and unlimited "guarantee over two years or 200,000 km on engine, gearbox, and rear suspension," and the "guarantee for eighteen months or 50,000 km on the rest of the vehicle, except for parts subject to wear and tear." Alleging in the appellate response that there was not sufficient factual basis for such guarantee and, thus, any appellate assessments violated the rules of civil procedure is unintelligible in light of this documented evidence. Irrespective of which of the two "guarantees" would apply to the damage to the air-conditioning system, it is undisputed that at the time of the accident neither temporal limitations (delivery on 18 March 1998; fire on 12 August 1998) nor mileage limitations (between 63,000 and 68,000 km) had been exhausted. It is also established that faulty assembly of certain parts of the air conditioning system had started the fire. According to common understanding in business, such a contractual guarantee establishes responsibility for any kind of defects within its time frame (Koziol/Welser, II 12, 91). Consequently, the buyer is not restricted to the mere statutory warranty (see RIS-Justiz RS0018623) because the contractual guarantee goes beyond the statutory claims (RIS-Justiz RS0018585; 7 Ob 732/93). In cases where a (subsequently appearing) defect can be ascribed to the seller on the basis of a contractual guarantee, the seller is liable even if the cause of the defect cannot finally be determined (SZ [*] 54/81: "10,000 km guarantee"). Therefore, the circumstance left undetermined by the Court of First Instance, namely which of the two Intervening Parties in the manufacturing chain had undertaken the faulty assembly of the bus parts, is not sufficient to release [Seller] from liability (SZ 54/81; RIS-Justiz RS0018659). By virtue of the guarantee that was issued, [Seller] is liable for the defect even if there is no personal fault on its part (RIS-Justiz RS0016964). Finally, it is irrelevant whether or not the defect was already apparent at the time of performance (RIS-Justiz RS0018602). Thus, assessments by the Court of Second Instance regarding both the indiscernible nature of the defect prior to the accident and the fact that the vehicle was already in service (evidently without problems) for almost five months, cannot be advanced in favor of [Seller]. This assessment (regardless of the undisputed application of Austrian law accepted by all parties) is governed by the rule in § 36 IPRG [*] for sales contracts, which is still applicable in this case: (§ 50(2) IPRG as amended by Art. I para. 3 BGBl [*] I 1998/119; Dittrich/Tades, ABGB, II 36 §§ 36-45 IPRG para. 1) and therefore depends on the seller's place of business (Schwimann, supra § 36 IPRG para. 3) and (also) on Austrian law. It is obvious that this principle all the more applies to the sales contract with Austrian buyer A____ GmbH (used here as a front-man), and does not require any further justification.

It furthermore follows that this dispute does not depend on any exemption from liability for (self-dependent) third persons in terms of Art. 79(2) CISG, such that both an examination of the controversial opinions cited by the Appellate Court as well as a decision on the legal issue are unnecessary. Moreover, the standard terms relating to contractual guarantee issues (under the ABGB) are not decisive in this dispute.

Nor does the fact that the contract was not concluded with the actual buyer, but instead with another corporation on a pro forma basis, alter this result. The Appellate Court rightfully qualified this "complex construction of contracts" as circumvention rather than a sham transaction (which [Seller] then even conceded in its submissions), and therefore the sanction of nullity under § 916 ABGB does not apply (Rummel/Rummel, ABGB 3d ed., para 1 to § 916). This sanction would have applied only if the transaction that the parties actually intended to undertake had been null and void, which is not the case here (RIS-Justiz [*] RS0045196). Even though the parties did not intend to circumvent a statutory export ban (of German omnibuses into Switzerland), but rather to get around mere "internal corporate guidelines," there had nevertheless been a "bypass transaction" in this sense (see for the concept 7 Ob 87/01x), which (according to the majority opinion) is governed by those legal norms applicable to the legal transaction that the parties actually intended to carry out (1 Ob 559/93; SZ [*] 73/55). Consequently, the contractual guarantees by [Seller] also unrestrictedly apply to the intended transaction - i.e., the sales contract with the Swiss [Buyer], in particular since this vehicle was never actually purchased or acquired by A____ GmbH, who served merely as a front-man and pro-forma buyer.

According to the further intent of the (true) parties to the contract, comprehensive insurance was effected by S____ GmbH [*], who was also introduced as the official holder of the vehicle's registration on a mere pro forma basis. The above rules for bypass transactions apply to this relation as well, yet it was not established during the taking of evidence in previous instances that Plaintiff [Insurer] was involved in these bypassing maneuvers or that it was aware or should have been aware of them.

Subsequent to the vehicle's fire damages on 12 August 1998, Plaintiff [Insurer] paid out insurance benefits in a total amount of €244,923.29 pursuant to the insurance contract. Since it has been demonstrated above that [Seller] is liable due to the contractual guarantee, Plaintiff [Insurer] is granted the right to sue by way of recourse claims under § 67(1) VersVG [*], insofar as it has already compensated the insured party's claim for damages against [Seller]. Any internal legal constructions for bypassing and financing can neither eliminate nor reduce this recourse claim. Even [Seller] is considered a "third person" in this context, in accordance with § 67(1)(1) VersVG (Baumann, Berliner Kommentar [Berlin Commentary], § 67 para. 51; Prölss/Martin/Prölss, VersVG, § 67 para. 12). This provision also applies to costs for an expert's report as a means of ascertaining the cause of the fire (Prölss/Martin/Prölss, supra, para. 9). [Seller]'s appellate submissions that recourse was impossible because "there had been no sales transaction between [Insurer]'s insured and [Seller]" and that "UBS Leasing AG had been owner of the destroyed goods" is accordingly of no legal significance.

Therefore, it conclusively follows that the appeal is justified and the judgment from the Court of First Instance will be restored (except for a minor sum that had been dismissed). As has been pointed out, the quantum of damages remained undisputed during the appellate proceedings.

The decision on costs and expenses is based on §§ 41, 50 ZPO [*].


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff is referred to as Plaintiff [Insurer] and Defendant of Austria is referred to as [Seller]. Amounts in the uniform European currency (Euro) are indicated as €. Amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr.].

Translator's note on other abbreviations: ABGB = Allgemeines Bürgerliches Gesetzbuch [Austrian Civil Code]; AG = Aktiengesellschaft [Public Corporation]; BGBl = Bundesgesetzblatt [Austrian Federal Law Gazette]; GmbH = Gesellschaft mit beschränkter Haftung [corporation with limited liability]; IPRG = Bundesgesetz über das Internationale Privatrecht [Austrian Federal Act on the Conflict of Laws]; OHG = Offene Handelsgesellschaft [Ordinary Partnership Company]; RIS-Justiz = Rechtsinformationssystem des Bundes [Austrian Federal Database on Law]; SZ = Sammlung Zivilsachen [Austrian Collection of Civil Law Judgments]; UmwG = Umwandlungsgesetz [Austrian Law regulating the transformation of companies]; VersVG = Versicherungsvertragsgesetz [Austrian Act on Insurance Contracts]; 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.

*** Todd Fox received his J.D. from Rutgers University and his LL.M. summa cum laude from the University of Freiburg, Germany. A member of the Bar of the State of Pennsylvania, he is an Associate of the law firm Gleiss Lutz of Stuttgart, Germany, specializing in commercial arbitration. He is also an Associate of the Institute of International Commercial Law of the Pace University School of Law.

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