Austria 29 November 2005 Supreme Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/051129a3.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 4 Ob 205/05h
CASE HISTORY: 1st instance [-]; 2d instance OLG Linz (GZ 3 R 57/05f-39) 8 August 2005
SELLER'S COUNTRY: [-]
BUYER'S COUNTRY: [-]
GOODS INVOLVED: [-]
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
18A1 [Criteria for acceptance of offer]
18A1 [Criteria for acceptance of offer]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
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 "4 Ob 205/05h" as "suchworte", click "suche starten"]
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
29 November 2005 [4Ob205/05h]
Translation [*] by Thomas Arntz [**]
Edited by Jan Henning Berg [***]
The Supreme Court of Austria, sitting as an Appellate Court, through Prof. Dr. Griss as Chairperson and Court Counselor Dr. Schenk, as well as Court Counselors Dr. Vogel, Dr. Jensik and Dr. Gitschthaler as further judges, rendered the following decision in the matter of Plaintiff E*** GmbH [Buyer], represented by Grassner Lenz Thewanger & Partner, attorneys in Linz, against Defendant P*** S.r.l., represented by Dr. Christian Hopp, attorney in Feldkirch, for EUR 283,756.62, on the [Seller]'s appeal from the decision of the Appellate Court Linz (Oberlandesgericht Linz) of 8 August 2005, GZ 3 R 57/05f-39:
The [Seller]'s appeal (außerordentliche Revision) is dismissed pursuant to § 508 a ZPO [*] because the requirements of § 502(1) ZPO are not fulfilled (§ 510(3) ZPO).
GROUNDS FOR THE DECISION
[Seller] asserts that the Appellate Court wrongfully followed the reasoning of the Supreme Court of Austria in its decision 7 Ob 275/03x (= SZ 2003/175) concerning the question of when standard terms and conditions are incorporated into a contract on the basis of the CISG, if only one party referred to its standard terms. The present case is different because [Buyer] as well as [Seller] continuously referred to their own, contradicting terms. There is no case law of the Supreme Court concerning this question.
However, [Seller]'s assertions do not correspond to the ascertained facts insofar as [Buyer] not only referred to its standard terms in its letter of acknowledgment following the oral order, but also in its written amendment. The standard terms were handed to [Seller] before the commencement of the business connection and they were in the negotiation language of the parties (German). [Buyer] pointed them out to [Seller] and the latter acknowledged the order (after written confirmation and amendment) in writing without objecting to the application of these terms and without referring to its own standard terms.
[Seller] thus explicitly accepted the [Buyer]'s offer including the standard terms and conditions (Art. 18(1) CISG). There is no acceptance containing modifications which could be seen as a counter-offer or which could establish an obligation to object (Art. 19(1) and (2) CISG).
* The [Seller]'s assertion that its employee who confirmed the [Buyer]'s order (and the amendment) was not authorized to make legal declarations was not brought forward by [Seller] in the proceedings before the Court of First Instance.
All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff-Appellee is referred to as [Buyer] and Defendant-Appellant is referred to as [Seller].
Translator's note on abbreviations: ZPO = Zivilprozessordnung [Austrian Code of Civil Procedure].
** Thomas Arntz is a law student at the University of Cologne. During 2003-2004, he spent a year in Clermont-Ferrand, France, as an Erasmus student. In 2004/2005, he participated in the Twelfth Willem C. Vis Moot.
*** 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.Go to Case Table of Contents