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CISG CASE PRESENTATION

Austria 26 April 2005 Supreme Court (Lamps case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/050426a3.html]

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

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Case identification

DATE OF DECISION: 20050426 (26 April 2005)

JURISDICTION: Austria

TRIBUNAL: OGH [ = Oberster Gerichtshof = Supreme Court]

JUDGE(S): Dr. Schinko (Vorsitz), Dr. Fellinger, Dr. Hoch, Dr. Neumyr, Dr. Schramm

CASE NUMBER/DOCKET NUMBER: 10 Ob 22/05s

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

CASE HISTORY: 1st instance LG St. Pölten (GZ 1 Cg 92/02m-23) 5 March 2002; 2d instance OLG Wien (GZ 2 R 183/04b, 2 R 184/04z-31) 15 October 2004

SELLER'S COUNTRY: Denmark (defendant)

BUYER'S COUNTRY: Austria (plaintiff)

GOODS INVOLVED: Lamps


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 57

Classification of issues using UNCITRAL classification code numbers:

57A [Place of payments: in absence of agreement, payment at seller's place of business]

Descriptors: Payment, place of ; Jurisdiction

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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

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1051&step=Abstract>

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 "10 Ob 22/05s" as "suchworte", click "suche starten"]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1051&step=FullText>

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)

26 April 2005 [10 Ob 22/05s]

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

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

JUDGMENT

The [Seller]'s appeal (Revisionsrekurs) is dismissed.

[Buyer]'s response to the appeal (Revisionsrekurs) is also dismissed.

FACTS

Plaintiff [Buyer], domiciled in St. Pölten, Austria, and Defendant [Seller], domiciled in Odense SO, Denmark, had a business relationship during 1998 and 1999. [Buyer] has purchased high-quality lamps from [Seller] for resale and asserts that a sale or return provision would have been stipulated with respect to the transaction in question.

POSITION OF THE PARTIES IN THE COURT OF FIRST INSTANCE

[Buyer]'s position

During the proceedings before the Court of First Instance, the District Court (Landesgericht) St. Pölten, [Buyer] requested [Seller] to refund the final balance in [Buyer]'s favor of EUR 103,490.92 after it had ended the business relationship. (This claim originated from goods which had been paid for but which were returned to [Seller]). As for the jurisdiction of the Court of First Instance, [Buyer] relied on Art. 5 Brussels Convention. It had been agreed that [Seller]'s obligations were to be performed at [Buyer]'s domicile. This also followed from the applicable substantive law, namely Art. 57 CISG which provides that obligations to pay are debts to be discharged at the creditor's domicile (ON 1 and AS 67).

[Seller]'s position

[Seller] raised the defense that the Court lacked international jurisdiction. The parties had not made any agreement on the place of jurisdiction and there was also no Austrian jurisdiction on the grounds of performance. The alleged obligation to pay had to be performed at [Seller]'s seat in Denmark. Furthermore, Art. 57 CISG did not provide for a different result. This provision does not generally state that such obligations needs to be fulfilled at the creditor's domicile. Art. 57 CISG merely regulates the place of payment of the purchase price.

JUDGMENT OF THE COURT OF FIRST INSTANCE

The Court of First Instance dismissed [Buyer]'s action due to a lack of international jurisdiction. The Court held that [Buyer] should bear the costs of the proceedings. A claim by [Seller] for compensation of additional costs was dismissed (Resolution ON 23, respectively, item I.1, I.2 and II of Supplementary Resolution ON 26). Place of performance for [Seller]'s purported obligation to pay (following the final balance that accrued from a reverse transactions and a set-off in favor of [Seller]) was at its seat in Denmark. The Court held that the CISG was expressly not applicable to govern the contract's validity and the consequences in terms of title arising out of an international sales contract. Furthermore, [Buyer] had not succeeded in establishing proof that a choice of forum had been made by the parties because such an agreement neither followed from the available documents nor from the testimony of the witness. Finally, the lack of international jurisdiction was not cured under Art. 24 Brussels Convention.

JUDGMENT OF THE APPELATE COURT (Rekursgericht)

The Appellate Court amended these resolutions. It dismissed [Seller] request which called for a dismissal of [Buyer]'s claim due to a lack of international jurisdiction. The Court held that the costs of the proceedings formed further procedural costs and it admitted further appeal (Revisionsrekurs). In respect to the appeals on costs against Resolution ON 26, the Court referred to the further proceedings. [Buyer] (as the party which relies on reimbursement claims from the sales contract) could -- pursuant to the principles laid down in 5 Ob 313/03w -- file an action at its own domicile being the creditor of the claim for payment, which constituted an obligation to be fulfilled at the creditor's domicile (the place of performance). The Federal Supreme Court of Austria (Oberster Gerichtshof) ruled that under Art. 57(1)(a) CISG the obligation to effect payment of the goods constituted an obligation to be fulfilled at the seller's domicile, 3 Nd 509/02. It seemed justified to apply the same principle to other claims for monetary payment by analogy as well to the effect that, in the present case, the place of performance was the place of business of the creditor of the payment claim. The creditor of the payment claim was [Buyer] in the case at hand. Therefore, international jurisdiction of the Court of First Instance was affirmed.

The question of whether "a claim for reimbursement of an already paid purchase price" after return of the goods constituted a miscellaneous claim for payment and, consequently, qualified as an obligation to be fulfilled at the creditor's domicile, had not been assessed by the Austrian Federal Supreme Court (Oberster Gerichtshof) yet. Further appeal (Revisionsrekurs) was thus admissible.

POSITION OF THE PARTIES

Position of [Seller]

[Seller] requests in its extraordinary appeal against this judgment:

   a)    Amendment of the judgment should be effected in a way that the defense of a lack of international jurisdiction will be approved. Therefore, the resolution of the Court of First Instance in form of the Supplementary Resolution ON 26, item I.1 should be restored. In the alternative, [Seller] requests full repeal of the Appellate Court judgment.
 
   b)    The judgment of the Appellate Court should be amended in a way that [Seller]'s appeal against the supplementary resolution on costs made by the Court of First Instance will be approved. Therefore, [Buyer] should be held liable for the designated costs. Alternatively, the Court should itself decide on the appeal on costs against the supplementary resolution. In addition, [Seller] requests repeal of the resolution in question in the alternative.

Position of [Buyer]

[Buyer] requests the Court to remand, alternatively to dismiss, [Seller]'s recourse due to a lack of the requirements necessary to apply 528(1) ZPO [*].

REASONING OF THE FEDERAL SUPREME COURT

[Seller]'s revisional recourse is inadmissible.

Concerning item a) of the request:

      Under 519(1)(1) ZPO, appeal against a resolution of a court in appellate proceedings is only admissible insofar as the appellate court has dismissed the action or an appeal for formal reasons and without a decision on the merits. The dismissal of an appeal is therefore not contestable insofar as the former is based on invalidity due to procedural barriers. The Austrian Federal Supreme Court (Oberster Gerichtshof) has already pointed out on several occasions that the provisions applicable to the contestability of resolutions made by the appellate court must be as well applied in those cases where a decision on a request for legal protection geared at final settlement of the proceedings by dismissal of the action is rendered by a "recourse appellate court" (Rekursgericht) instead of an appellate court (RIS-Justiz [*] RS0043405 [T32, T34, T36, T38, T39, T41, T42, T44]).

It would constitute an unbearable, contradictory legal assessment if the dismissal of an appeal filed on the grounds of invalidity during appellate proceedings as well as the remanding of the action would not be subject to a possible contestation, while, at the same time, a comparable request for legal protection would be admissible in recourse appellate proceedings (RIS-Justiz RS0054895; 9 ObA 149/92 and 9 ObA24/96 (domestic jurisdiction); 9 ObA 258/92 and 9 ObA 22/98w (pendency of a dispute); 9 ObA36/95 (inadmissibility of legal action) SZ [*] 70/1 (to analogies in general); most recently: 3 Ob 318/04t; 6 Ob 24/05f and 10 Ob 39/03p; Rechberger/Kodek, 2nd ed., 528 ZPO [*] para. 1.

The necessary and appropriate application of 519(1)(1) ZPO by analogy, however, leads to the result that the opinion expressed by the Appellate Court -- which held that the Court of First Instance had international jurisdiction -- can no longer be revised by the Austrian Federal Supreme Court (Oberster Gerichtshof) (10 Ob 39/03p).

Concerning item b) of the request for revision:

      The challenged resolution cannot be properly contested with regard to this second request. The resolution constitutes a decision on costs in terms of 528(2)(3) ZPO. According to continuous jurisprudence of the Austrian Federal Supreme Court (Oberster Gerichtshof), this provision has always been applied in a broad manner (cf. expressly 2 Ob 233/00d with reference to the historical background of the provision since the 1st amendment to the ZPO for relief of courts, RGBl [*] 1914/118, and the judgment SZ [*] 2/143 = Judikatenbuch No. 4; RIS-Justiz [*] RS0053407; most recently: 10 Ob 16/04g with further references). The expressed exclusion from procedural remedies is therefore applicable to all cases in which -- formally or materially -- a decision is made on the matter of costs (RIS-Justiz RS0007695; RS0044110; RS0044233; most recently: 8 Ob 19/05k with further references). In detail, the exclusion not only applies to those cases in which only the quantity of costs is discussed, but also to those that deal with the question whether a claim for reimbursement of costs at all exists, who should be entitled to this claim as well as with the question on the denial of a decision on costs. Even mere formal decisions rendered by courts in second instance are embodied (RIS-Justiz RS0044233; RS 0111498; most recently: 8 ObA 25/04s and 10 Ob 16/04g).

Consequently, the appeal (Revisionsrekurs) is inadmissible in full and has to be dismissed.

Moreover, the procedural response to the revisional appeal is not admissible: Procedural law does not allow for a response to an inadmissible remedy; the present proceeding is therefore not a bilateral proceeding (6 Ob 24/05f; SZ 70/246; 3 Ob 102/04b; 1 Ob 178/04i). Apart from that, the submitted response to the revisional appeal could not be approved as it was not essential for the purpose of receiving legal protection. There had been no reference to the non-contestability of the decision challenged by the appeal.


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 [Buyer] and Defendant of Denmark is referred to as [Seller]. Amounts in the uniform European currency (Euro) are indicated as [EUR].

Translator's note on other abbreviations: RGBl = Reichsgesetzblatt [Official Law Gazette of the former Empire]; RIS-Justiz = Rechtsinformationssystem des Bundes [Austrian Federal Database on Law]; SZ = Sammlung Zivilsachen [Austrian Collection of Civil Law Judgments]; 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. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis and 4th Willem C. Vis (East) Moot.

*** Ph.D. candidate Daniel Nagel has studied law at the University of Heidelberg and at the University of Leeds.

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