Austria 29 July 2004 Oberlandesgericht [Appellate Court] Graz (Construction equipment case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040729a3.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 5 R 93/04t
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Austria (defendant)
GOODS INVOLVED: Construction equipment
AUSTRIA: Oberlandesgericht Graz 29 July 2004
Case law on UNCITRAL texts (CLOUT) abstract no. 746
Reproduced with permission of UNCITRAL
Abstract prepared by Martin Adensamer, National Correspondent
A partnership between a German and an Austrian company, carrying out construction work in Germany, sold three pieces of construction equipment to an Austrian company to be picked up at the construction site. The buyer took delivery of only one item but not the remaining two. The seller warned the buyer that it would claim for damages or declare the avoidance of the contract if the buyer would not take over the other items too and pay the price within a given date. The buyer opted for the avoidance of the contract. The seller sold the equipment to one of its partners and claimed for damages, which was the difference between the price they finally got and the price agreed upon with the defendant.
The court granted the claim and the buyer appealed. On the issue of applicability of CISG, the court considered the seller's place of business to be the construction site where the contract had been concluded and where the equipment was to be picked up by the buyer. As a matter of fact, pursuant to Art. 10(a) CISG, the construction site had the closest relationship to the contract and its performance. Therefore the CISG was applicable according to Art. 1(1)(a) CISG.
The court further stated that the seller was entitled to damages based on the difference between the contract and the cover purchase price pursuant to Art. 75 CISG, because the seller had actually resold the remaining two items. With respect to the declaration of avoidance pursuant to Art. 26 CISG, the court noted that the buyer had opted for avoiding the contract in response to the seller setting a deadline for avoidance and to claim for damages. The court found that, after the refusal of performance by the buyer, the requirement of a declaration of avoidance by the seller was redundant. In addition, the court observed that since the buyer had refused performance, the seller could claim damages without a formal notice of avoidance pursuant to Arts. 61, 74 CISG.
The appeal was dismissed and the claim granted.
Go to Case Table of ContentsAPPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
10A1 [Place of business: closest relationship to contract and performance]; 25B [Definition of fundamental breach: substantial deprivation of expectation, etc.]; 26A [Notification of avoidance: effective declaration of avoidance]; 74A [General rules for measuring damages: loss suffered as consequence of breach]; 75A1 [Damages established by substitute transaction after avoidance: resale by aggrieved seller]; 77A [Obligation to take reasonable measures to mitigate damages]
Descriptors:
CITATIONS TO OTHER ABSTRACTS OF DECISION
Unavailable
CITATIONS TO TEXT OF DECISION
Original language (German): Click here for German text of case; see also CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/1627.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
Unavailable
Go to Case Table of ContentsCase text (English translation) [second draft]
Queen Mary Case Translation Programme
29 July 2004 [5 R 93/04t]
JUDGMENT
FACTS
The Walter Bau-Aktiengesellschaft has its seat in Augsburg, Germany and it entertains various subsidiaries, inter alia in Munich [first Plaintiff-Appellee] and in Dresden. The Jäger Bau GmbH [second Plaintiff-Appellee] has its seat in Schruns, Austria. The joint Plaintiff-Appellees are referred to as [Sellers]. These two legal persons have established the ARGE Sandbergtunnel (hereafter: ARGE) with an allocation of shares of 50% each, which had been operating a tunnel construction site in D-99326 Niederwillingen/Behringen, Germany. The General Kommerz Handels-Gesellschaft mbH [Buyer] has its seat in Kammern in Liesingtal, Austria. Since registration, its CEO has been Mr. Manfred Lanzmaier.
POSITIONS OF THE PARTIES IN FIRST INSTANCE
Position of [Sellers]
With the present action, [Sellers] demand from [Buyer] payment of EUR 21,787.45 on the grounds that [Sellers] had sold to [Buyer] a tunnel excavator "Liebherr 932 HD" (hereafter: the tunnel excavator), unrepaired, at a price of EUR 85,379.53, a hydraulic hammer "Krupp HM 1000" (hereafter: the hydraulic hammer) at a price of EUR 35,790.43 and a replacement chisel for the hydraulic hammer at a price of EUR 997.02. Each item was sold ex construction site ARGE. [Buyer] had merely accepted delivery of the tunnel bagger, but failed to perform its contractual obligations concerning the other items. By letter dated 2 July 2002, ARGE set [Buyer] a time period for collection and payment until 10 July 2002 and further announced to claim damages in case of expiry of that time period failing any action by [Buyer]. The [Buyer] requested [Sellers] by its letter of 14 July 2002 to cancel the contract in relation to the hydraulic hammer and the replacement chisel. Thereupon, [Sellers] were able to make cover sales of these two items at a price of not more than EUR 15,000, which meant that the claimed sum constituted their financial damage.
Position of [Buyer]
[Buyer] requested dismissal of [Sellers]' action before the Court of First Instance and argued that [Sellers] -- contrary to the content of their letter of 2 July 2002 -- had not declared avoidance of the contract and that [Buyer] itself asked for cancellation of the contract concerning the hydraulic hammer and the replacement chisel by way of its letter of 14 July 2002. Apparently, [Sellers] accepted [Buyer]'s request because they concluded cover sales of these items to [first Plaintiff-Appellee]; a sale to itself was, however, not legally possible. In any event, [Sellers] failed to comply with their duty to mitigate losses because the price of their cover sale clearly constituted a dumping price given that both items were in mint condition. [Sellers] were under a duty to intensify their efforts for a cover sale in which case they would have been able to contract at a price of EUR 37,000. In any case, no price difference in the amount now claimed by [Sellers] would have accrued. Furthermore, [Buyer] had not previously been made aware of [Sellers]' internal deal at that dumping price.
JUDGMENT BY THE COURT OF FIRST INSTANCE
The Court of First Instance sustained the [Sellers]' claim.
Reference is directed to the findings of the Court of First Instance which are reproduced on pp. 4-12 of its judgment. It mainly set out in terms of law that the rights and obligations arising out of the present contract were governed by the CISG. In accordance with Art. 1(1)(a) CISG, the Convention applies to all transnational contracts of sale of movable and tangible goods between persons who have their places of business in different Contracting States, without requiring any express decision to opt into the CISG. In the present case, a contract of sale concerning construction machinery had been concluded between an Austrian and a German company which means that the parties to the contract have their places of business in different Contracting States. The CISG governed the conclusion of contracts of sale and the rights and obligations of buyer and seller arising out of it.
Pursuant to Art. 25 CISG, a breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract. The issue in the case at hand is whether [Buyer] had properly performed its obligation under the contract or whether it had been in breach of the contract.
The obligations of a buyer are set out in Arts. 53 et seq. CISG. The buyer has the obligation in accordance with the contractual agreement to make payment of the purchase price and to accept the goods. The parties to the present contract had come to an agreement that the buyer would be obliged to collect the goods at ARGE's construction site after having made payment. [Buyer] had performed the contract only partially since it neither paid for nor collected the hydraulic hammer and the replacement chisel from the construction site, without having given any further explanation to ARGE. ARGE thus correctly requested [Buyer] to pay for the devices and collect them. The CISG contains a duty of the buyer to accept the purchased goods.
The content of [Sellers]' letter could not be interpreted in a way that [Buyer] should be granted a right to cancel the contract in relation to these two items. Instead, [Sellers] threatened to bring legal claims should [Buyer] continue its conduct in breach of the contract. In the context of its own conduct, [Buyer]'s letter in response must be very well understood in a way that [Buyer] then definitely refused to perform the residual part of the contract, which constituted a breach of the contract by the buyer. This even amounted to a fundamental breach of contract in terms of Art. 25 CISG because the contracting parties correspondingly stipulated incorrect amounts for each single item and that each of the parties attached importance to the "package as a whole".
According to Art. 64(1)(a) CISG, [Sellers] (as members of ARGE) were not only entitled to a damages claim but also to request avoidance of the contract which they unambiguously declared by their subsequent conduct, namely, their cover sale of the hydraulic hammer and replacement chisel as well as dispatch of their subsequent letter of claim against [Buyer]. A claim for damages under the CISG does not require a finding of fault; the party in breach of its obligations is liable under Art. 74 CISG against the other party for the damage accrued, irrespective of fault. Compensation must be made in full and damages include lost profit. In the present case, the seller concluded a cover sale and was thus entitled under Art. 75 CISG to claim the difference between the price agreed in the contract and the price achieved in the course of the cover sale as damages. Art. 77 CISG provided for a duty to mitigate losses. According to this provision, a party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss. [Sellers] have -- by virtue of their substitute sale of hydraulic hammer and replacement chisel -- clearly performed this duty, in particular because no more favorable sale could have been concluded in the specific circumstances.
POSITIONS OF THE PARTIES BEFORE THE APPELLATE COURT
Position of [Buyer]
[Buyer]'s appeal challenges the judgment by the Court of First Instance. [Buyer] asserts improper proceedings, incorrect factual findings and errors of law made by the Court of First Instance and requests the Appellate Court to repeal the judgment and dismiss [Sellers]' action. In the alternative, [Buyer] requests the judgment to be repealed and the dispute to be remanded to the Court of First Instance for it to re-initiate proceedings and render judgment anew.
Position of [Sellers]
[Sellers] requests the Court to dismiss [Buyer]'s appeal.
Since neither party made an application for an appellate oral hearing and since the Court does not think this is necessary, the appellate judgment has been rendered in private session according to § 492 ZPO [*].
REASONING OF THE COURT
[Buyer]'s appeal is unfounded.
[Buyer]'s assertion of improper proceedings is incorrect. [Buyer] mainly argues that the Court of First Instance committed a procedural error because, after hearing the Witness Mr. Clemens Pacher and presentation of the repair offer by Company Nagel Industriemaschinen GmbH, the value of the "whole package" could be readily determined. However, [Buyer] has entirely failed to comprehensibly explain why this should be relevant for a final adjudication of the present dispute. [Buyer]'s submissions can further be challenged by the undisputed determination that the tunnel excavator was purchased in unrepaired state, and -- even in accordance with the statements made by [Buyer]'s CEO during his hearing (ON 12, pp. 16 and 17) -- the purchase price for the tunnel excavator had been determined by subtracting the necessary costs for remedying the existing damage.
[Buyer] challenges the factual finding by the Court of First Instance that the excavator also showed damage at its arm while the corresponding repair costs were already considered in the course of the excavator's price calculation, made by an employee of Company Nagel in an estimation of costs, of which [Buyer]'s CEO had at least been aware. In lieu of this finding, [Buyer] requests the Court to find that [Buyer]'s CEO had seen the estimation of costs by Company Nagel at the most within the documents of [Sellers]' chief technician. The remaining parts of the challenged factual finding should apparently be deleted without substitution because p. 8 of the application for appeal reads under item a): "No evidence has been collected to assume and determine that there was damage at the arm and that this was in turn considered in the purchase price calculation."
The very part of the factual findings which are now challenged by [Buyer] as incorrect is, however, supported not only through the statements made by Witness Mr. Michael Ketterer (ON 12, p. 10), but particularly through a document (exhibit B) indicating that [Buyer]'s CEO had received an estimation of costs by Company Nagel Industriemaschinen GmbH in relation to the repair of all substantial damage during his visit to ARGE's construction site. The need to repair the tunnel excavator (at its "arm"; contrary to [Buyer]'s opinion, no "fracture of the arm" was determined but a mere "damage") follows from the statement made by Witnesses Mr. Markus Meiler (ON 12 pp. 3 and 5) and Mr. Michael Ketterer (ON 12, p. 10), and is further supported by [Buyer]'s hearing as a party (ON 9, p. 4) which gives rise to the factual determination concerning the purchase price calculation for the tunnel excavator (ON 12, pp. 16 and 17). It is therefore incorrect to argue that, in the course of its factual determinations, the Court of First Instance improperly gave predominant weight to the stated witnesses. The same determinations readily follow from statements made by [Buyer]'s CEO and cannot be overall challenged.
[Buyer] further contests the following factual finding: "Since both [Buyer] -- who already acquired a potential buyer for the excavator and the hammer -- and ARGE Sandbergtunnel attached decisive importance to the total price of both sold devices (excavator and hammer), Mr. Ketterer, Mr. Meiler and also Mr. Lanzmaier accepted the fact that the documents underlying the purchase displayed the reinstatement value for the hammer and a too low price for the excavator." Instead, [Buyer] requests the Court to determine that sale of the excavator as such was still a profitable business, respectively, that it was commercially viable even without sale of the hammer and the replacement chisel.
However, as has already been set out by the Court of First Instance, this challenged finding primarily follows from the statements made by [Buyer]'s CEO himself (see ON 9, p. 8; ON 12, p. 17). [Buyer]'s arguments concerning non-credibility of Witness Mr. Michael Ketterer are readily opposed by the consideration that his statement was not entirely reproduced by [Sellers]. The Witness also stated that it was possible that the estimation of costs had then been surrendered directly to Mr. Lanzmaier (ON 12, p. 10), which also follows from the documents (exhibit B) and which has already been determined in this way. The Appellate Court thus has no reason not to adopt the challenged finding. Moreover, the substitute finding requested by [Buyer] would not even be supported by any evidence which means that, in any event, it would be without any bearing to the present dispute.
[Buyer] goes on to challenge the finding by the Court of First Instance to the effect that, in the course of a telephone call (about two or three days prior to actual collection of the tunnel excavator), Mr. Ketterer had not told Mr. Lanzmaier that it would be fine if [Buyer] only purchased the excavator but no longer the hammer with the chisel, respectively, that he would not care whether or not the excavator was to be sold with the hydraulic hammer. Instead, [Buyer] requests as a factual determination that the commercial director of the construction site, Mr. Ketterer, and [Buyer]'s CEO had agreed that [Sellers] were fine with an "individual sale" of the excavator and that [Sellers] did not care whether or not the hammer and replacement chisel were also sold in addition, since these two items could be mounted on numerous similar machines and since there were sufficient opportunities to put these items onto the market.
There exists no evidence in favor of [Buyer] to support the last part of its requested finding, meaning that this part of the proposed substitute finding cannot be given consideration. The consideration of evidence made by the Court of First Instance is correct in regard to the essential issues of fact in this dispute; reference is directed to its reasoning. In particular, it is referred to the finding that [Buyer]'s CEO in the course of his hearing never mentioned any amendment to the contract over the telephone. Instead, when he was asked whether there had been specific negotiations about an individual purchase of the excavator without the hammer, he explained that no such talks had been conducted (ON 9, p. 6). This is also consistent with the content of exhibit P (letter by [Buyer] to ARGE of 24 May 2002, received on 24 May 2002), which reads: "The invoiced Krupp hydraulic hammer with replacement chisel will be delivered to Croatia by carrier within the next days." It was only during his second hearing that [Buyer]'s CEO asserted to have called Mr. Ketterer and asked whether they could purchase the excavator individually and that Mr. Ketterer thereupon answered that this had been possible.
[Translator's note: At this point the German text of the decision is incomplete and a small part of the decision cannot be translated.]
Furthermore, it is absolutely implausible that a sales contract -- concluded by ARGE and in written form -- which according to the undisputed facts was also approved by ARGE's supervisory body (see US 8) would have been amended by an employee of [first Plaintiff-Appellee] simply over the telephone and without any consultation. The correctness of the evaluation of evidence by the Court of First Instance is also supported by the fact that the sale of the machinery subject to this litigation by ARGE to Walter Bau Aktiengesellschaft, Dresden subsidiary, was also approved by ARGE's supervisory body (see US 11).
[Buyer]'s arguments can further be challenged because ARGE had already threatened to exercise claims for non-performance with its letter dated 2 July 2002 (exhibit D). The respective announcement by [Sellers] in their letter of 17 July 2002 (exhibit H) can directly be inferred from the letter dated 27 August 2002 (exhibit L).
[Buyer] also contests the factual findings made in document US 9 that, at the day of collection of the excavator by carrier (30 May 2002), Mr. Ketterer had once again had a telephone conversation with Mr. Lanzmaier on which occasion he did not confirm to [Buyer]'s CEO that it was fine if he then purchased the excavator alone and without the hammer. [Buyer] seems to propose a different factual scenario which is similar to the previously mentioned contested finding, meaning that reference can be made to the previous reasoning of the Court. It should be added, however, that if 30 May 2002 was assumed as the day of collection of the excavator -- which is not at all contested by [Buyer] -- and if consideration is given to the content of [Buyer]'s letter of 24 May 2002 which reached ARGE at that day, it seems impossible to say that on that day already or shortly before there had been a contract amendment to the effect that [Buyer] would only purchase the tunnel excavator.
In relation to the contested findings in document US 10 that [Buyer]'s CEO had not given ARGE any notice until receipt of this letter (the letter of 14 July 2002) which stated that they would no longer want to purchase the hydraulic hammer and replacement chisel, [Buyer] fails to offer a suitable other factual scenario. This challenge of factual findings can therefore not be considered by the Court.
Finally, [Buyer] objects that the Court of First Instance found in document US 11 that for the machinery subject to this litigation a purchase price of only EUR 15,000 could have been achieved. This should be substituted by a factual scenario based on the content of exhibits E, H and L to the effect that [Sellers] accepted a much too low price for the hammer and chisel ("dumping price") at the time of "cover sale" to its own company -- which amounted to a "self-retention" because of legal frustration. [Sellers] had failed to offer [Buyer] at least the intended resale price of EUR 15,000 for a counter-bid or acceptance.
However, the stated documents do not support the substitute factual finding proposed by [Buyer]. Moreover, the Court of First Instance has comprehensibly explained in its evaluation of evidence how it arrived at the findings which have now been challenged (see US 15 and 16). Reference is directed to these documents. Additionally, it should be considered that [Buyer] failed to offer suitable evidence in support of its proposed factual scenario and that not even its CEO was able to make specific statements during his hearing. Therefore, the factual findings were once again improperly challenged.
The desired factual finding that [second Plaintiff-Appellee] had its seat in Austria has already been made in document US 4.
Consequently, the Court adopts all factual findings made by the Court of First Instance and, as has been shown, these contested findings do not require any amendment. Therefore, these findings form the basis of the Court's judgment (§ 498(1) ZPO [*]).
On that basis the legal challenge will be unsuccessful as well.
1. According to Art. 1(1)(a) CISG the Convention applies to contracts of sale of goods between parties whose places of business are in different States when the States are Contracting States. It is undisputed that both Germany and Austria have been Contracting States to the CISG at the time of conclusion of the present contract of sale. Contrary to the view taken by [Buyer], the nationality, respectively, the domestic law applicable to a legal person, is irrelevant (Art. 1(3) CISG).
Since [second Plaintiff-Appellee] -- having its seat in Schruns, Austria -- is connected with [first Plaintiff-Appellee] as "ARGE" and since they operated a tunnel construction site in Niederwillingen/Behringen, Germany, it must be decided whether this amounts to a "place of business" in terms of Art. 1(1) CISG. The term "place of business" must be broadly interpreted but does not constitute a technical legal term. It refers to any place from which participation in commercial transactions with third parties takes place and with a certain autonomy. It is not necessary to have the epicenter of commercial activity or the seat of the business management at that place. The "place of business" merely requires to execute a minimum of actual functions within the business of the company concerned. Only mere ancillary functions will not qualify to establish a place of business. In case of multiple places of business, Art. 10(a) CISG provides that the relevant place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract (Hoyer/Posch, Das Einheitliche Wiener Kaufrecht, 34 et seq.; Karollus, UN-Kaufrecht, 28 et seq.).
Concerning the above meaning of the term "place of business" and owing to the fact that the contract of sale and execution of the transaction has been concluded in relation to [second Plaintiff-Appellee] and ARGE, which deployed its actions from the tunnel construction site, this site operated by [second Plaintiff-Appellee] through ARGE in Germany at the time of conclusion of contract must be considered as a place of business under Art. 1(1) CISG. Since this very place of business has the closest relationship to the contract and its performance, the provisions of the CISG govern the present business transaction.
2. Art. 76 CISG provides that if the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under Art. 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under Art. 74.
The application of this provision -- which has been relied upon by [Buyer] -- is bound to fail because it has been established that [Sellers] have in fact concluded a cover sale. They are entitled to claim damages according to Art. 75 CISG. According to this provision, they may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under Art. 74 if the contract is avoided and if they have made a cover sale in a reasonable manner and within a reasonable time after avoidance.
According to the factual findings, it must be assumed that [Sellers] could not achieve a price higher than EUR 15,000 for the hydraulic hammer and replacement chisel, despite having obtained several purchase offers. Thus, the cover sale has been executed "in a reasonable manner". Consequently, a claim for damages amounts to the difference between the contract price -- the actual value of the goods is irrelevant -- and the price achieved in the cover sale.
The CISG does not know any ipso facto avoidance of contract but requires the party relying on avoidance to direct a declaration to the other party (Art. 26 CISG). In order to achieve legal certainty, only an express declaration to that effect will be sufficient. This applies also in a case of previous time extension (Nachfristsetzung). Expiration of the extended time merely causes the existence of a right to avoid the contract which must then also be actually exercised by means of a declaration of avoidance. However, under the CISG it will be possible to issue an anticipated declaration of avoidance at the same time of making the declaration concerning the time extension (Karollus, 151 et seq.; RIS-Justiz [*] RS0104937).
It has been established that [Sellers] requested [Buyer] by letter dated 2 July 2002 to make payment for the hydraulic hammer and replacement chisel by 10 July 2002 and to collect the items from the construction site. It has been added: "Should you fail to make payment and collect the identified machinery until 10 July 2002, we will rely on claims for damages because of non-performance or avoid the contract". This passage in itself cannot be interpreted as an anticipated declaration of avoidance. However, since [Buyer] responded to this sentence of [Sellers]' letter in [Buyer]'s letter dated 14 July 2002 by requesting cancellation of the contract for the hydraulic hammer and chisel, the Court takes the view that no further declaration of avoidance by [Sellers] was necessary. [Buyer] itself expressly requested avoidance of the contract and [Sellers] merely adhered to this request.
Apart from this, in case of breach of contract by the buyer, the seller may leave the contract in existence but demand damages for non-performance according to Art. 74 CISG in lieu of that performance. In this case, the loss suffered as a consequence of the breach of contract including any loss of profit must be recovered. According to a scholarly opinion, the party relying on a breach of contract may demand a claim for the price difference even without a formal act of contract avoidance by executing the cover transaction and thereby abdicating any further execution of the contract (Karollus, 155; RIS-Justiz RS0104929).
Irrespective of which legal position is taken, there will be a claim for damages for [Sellers] in the amount which they has claimed.
3. It is without any bearing on the present judgment whether or not [Sellers] form a unified party in litigation in terms of § 14 ZPO [*]. The CISG is the applicable law. Neither party attempts to draw claims from the agreed exclusion of warranty rights. Therefore, it may remain undecided whether this is grossly discriminating and thus against morality.
There was also no legally impossible sale of the machinery to an owned company which would amount to a "self-retention". This is because [Sellers] as members of ARGE and co-owners of the machinery sold it to the Dresden subsidiary of Walter Bau-Aktiengesellschaft, which constitutes an autonomous legal entity (see US 11, cf. also exhibit O).
Since [Buyer] explicitly declared to [Sellers] in its letter of 14 July 2002 that it would not adhere to the sales contract concerning the hydraulic hammer and replacement chisel, [Sellers] were under no obligation to previously announce the intended cover sale and to request a better offer than the existing purchase offers. Furthermore, even if this had been the case, there would have been a claim for damages in the amount of the price difference.
There is also no violation of a duty to mitigate losses. [Buyer]'s submissions to this effect are mere speculation and lack any support by facts and reliable evidence established in the First Instance.
Consequently, [Buyer]'s appeal is unsuccessful.
The decision on costs is based on §§ 41, 50(1) ZPO.
The decision on admissibility of further appeal on legal grounds is based on § 500(2) No. 3 ZPO. Further appeal is not admissible because the case poses no legal issues of considerable importance in terms of § 502(1) ZPO. The decision merely depended on the assessment of the present factual scenario.
FOOTNOTES
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Walter Bau-Aktiengesellschaft of Germany is referred to as [first Plaintiff-Appellee], Jäger Bau GmbH of Austria is referred to as [second Plaintiff-Appellee] and the joint Plaintiffs-Appellees are referred to as [Sellers]. Defendant-Appellant of Austria is referred to as [Buyer]. Amounts in the uniform European currency (Euro) are indicated as [EUR].
Translator's note on other abbreviations: RIS-Justiz = Rechtsinformationssystem des Bundes [Austrian Federal Database on Law]; ZPO = Zivilprozessordnung [Austrian Code on Civil Procedure].
** Jan Henning Berg has been a law student at the University of Osnabrück, Germany and at King's College London. He participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.
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