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CISG CASE PRESENTATION

Austria 18 October 2005 Supreme Court (Machines and containers case)
[Cite as: http://cisgw3.law.pace.edu/cases/051018a3.html]

Primary source(s) of information for case presentation: OGH website and Internationales Handelsrecht

Case Table of Contents


Case identification

DATE OF DECISION: 20060125 (25 January 2006)

JURISDICTION: Austria

TRIBUNAL: OGH [= Oberster Gerichtshof = Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 1 Ob 163/05k

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

CASE HISTORY: 1st instance HG Wein (33 Cg 190/02v-32) 13 September 2004; 2d instance OLG Wein (3 R 239/04k-36) 1 September 2005

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Turkey (defendant)

GOODS INVOLVED: Machines and containers


Case headnote

Reproduced from Internationales Handelsrecht [3/2006] 108

"The court of second instance may not differ on the first courtís decision regarding the question of applicable law unless this point was relied upon by the appeal."

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Case abstract

AUSTRIA: Oberster Gerichtshof 18 October 2005

Case law on UNCITRAL texts (CLOUT) abstract no. 751

Reproduced with permission of UNCITRAL

Abstract prepared by Bernd Terlitza

The Italian seller sold machines and containers through 20 separate contracts to the Turkish buyer; the contracts were all based on a framework agreement. Later on the seller claimed the price in court. On the assumption that Italian law was applicable, as also agreed upon by the buyer during the proceedings, the claim was based on the CISG, since Italy is a Contracting State. The buyer only argued that the goods were defective. The court of first instance granted the claim because the defendant, i.e. the buyer, could not prove that it had given notice of the lack of conformity in due time.

The court of appeal remanded the case to the court of first instance, arguing that in the absence of a valid choice of law under Austrian conflict of law rules, the Turkish law should be applied. Since Turkey was not a Contracting State to the CISG, the court found that Turkish sales law and not the CISG was to be applied.

The Supreme Court argued that the buyer's appeal had not concerned the question whether Italian law was to be applied or not and the defendant had not asked for a review of the legal grounds given by the court of first instance. Therefore, the Supreme Court ruled that the court of appeal should not decide on this issue and upheld the decision of the court of first instance.

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Classification of issues present

APPLICATION OF CISG: [-]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 1(1)(b)

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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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): Austria Supreme Court website [go to <http://www.ris.bka.gv.at/jus/>, check "jus texte" box, enter "1 Ob 165/05k" as "suchworte", click "suche starten"]; Internationales Handelsrecht (3/2006) 108-110

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated February 19, 2008
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