Austria 7 June 1990 Supreme Court (Furniture case)
[Cite as: http://cisgw3.law.pace.edu/cases/900607a3.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 7 Ob 590/90
CASE HISTORY: 1st instance KG Wels 18 September 1989; 2d instance OLG Linz 1 March 1990
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Austria (defendant)
GOODS INVOLVED: Furniture
APPLICATION OF CISG: No. Dicta reference to CISG.
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
7 June 1990 [7 Ob 590/90]
EDITOR: Daniel Nagel
The [Buyer] (defendant), an Austrian company, bought furniture for resale on a regular basis from the [Seller] (plaintiff), a German company. Even though the parties had a long term business relationship, each sale was effected separately.
The following clause was printed on the front page of the standard order form of the [Buyer]:
"Any confirmation differing from this order is invalid. The delivery has to be effected according to these standard terms of purchase. The parties agree on the District Court of Wels as the competent court for the settlement of any dispute and on the exclusive applicability of Austrian law."
The [Seller] confirmed every order in writing and attached its standard terms of sale to these confirmations. These stipulated in para. 11 that contrary clauses in standard terms of a buyer would be invalid and in para. 12 that, for international sales, German law was to be applied.
Thirteen invoices, which had been issued in 1983 and 1984, remained unsettled, hence the insolvency administrator of the [Seller] - the [Seller] had entered into insolvency proceedings on 4 November 1986 - sued for payment on 30 December 1987.
The Court of First Instance dismissed the claim. It held that the [Seller] had accepted the standard terms of purchase of the [Buyer] as the [Seller] had failed to contest these terms. Hence Austrian law was to be applied and according to § 1486 ABGB (Austrian Civil Code) the claim was time-barred.
The Court of Appeal held that neither set of standard terms had become part of the contract. No party had sufficiently demonstrated that it was only willing to conclude a contract on the basis of its standard terms. The use of contrary standard terms, which had not been contested by either party at the time the contract was concluded, would thus lead to the assumption that the parties intended to conclude the contract, irrespective of the inclusion of any standard terms.
According to § 36 IPRG [Austrian Conflict of Laws], German law was hence to be applied and, according to German law, the claim was not time-barred.
The [Buyer] filed an appeal (Revision) stating that the Court of Appeal had been incorrect in its legal assessment and requested that the judgment of the Court of Appeal be revoked.
The use of contrary standard terms does not affect the validity of a contract. Parties dgenerally assume that a contract comes into existence as soon as an order is confirmed (cf. Rummel in Rummel, ABGB, 2. Auflage, Rz 3 zu § 864a; Willvonseder, Taktikspiel AGB? - Zum Problem einander widersprechender Geschäftsbedingungen, RdW 1986, 69 ff (72)). The parties at any rate tacitly express this by effecting and accepting the reciprocal performances. A different view can only be assumed if one party reinitiates negotiations and expresses the intent that it was only willing to conclude a contract on the basis of its standard terms.
Those parts of the contractual relationship which have thus not been agreed on have to be ascertained according to the dispositive law and complementary interpretation (cf. Rummel loco cit. Rz 6 zu § 869; Apathy in: Schwimann, ABGB IV/1 Anm. 2 zu § 861; Willvonseder loco cit. 73; cf. further:: Ulmer in: Ulmer-Brandner-Hensen ABGB5 Rz 103 zu § 2; AGB-Gesetz Larenz, Schuldrecht, Allgemeiner Teil 7, 556).
The fact that the proceedings had been started before an Austrian court does not demonstrate that the [Seller] had tacitly accepted the standard terms of the [Buyer] as the [Seller] had shown through the use of its standard terms that it was not willing to accept the application of foreign law.
REFERENCE TO CISG
Austria ratified the Convention on Contracts for the International Sale of Goods on 29 December 1987. The Convention thus entered into force in Austria according to Art 99(2) CISG on 1 January 1989 (cf. Austrian Federal Legal Gazette, (BGBl) 1988 N° 96 of 12 February 1988). As the contracts in dispute were concluded in 1983 and 1984, respectively, an application of the CISG was hence not possible. Therefore, it was all the more surprising that the Federal Supreme Court of Austria used an indirect reference to Art. 9(2) CISG (cf. Posch/Petz, in: Vindobona Journal of International Commercial Law and Arbitration (2002) p. 3).
It is true that, at first glance, the judgment seems to be in contrast with the interpretation of Art. 19(1) CISG according to the last-shot theory. However, it cannot be seen as contrary to the CISG as Art. 19(1) CISG can be interpreted in the light of Art. 9 CISG and Arts. 6 and 8 CISG (cf. Magnus in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, Wiener UN-Kaufrecht (CISG), 13. Bearbeitung (1999), Art. 19 CISG Rn 25; Kröll/Hennecke, Kollidierende Allgemeine Geschäftsbedingungen in internationalen Kaufverträgen, RIW 2001, S 741 f; Piltz, Internationales Kaufrecht (1993), § 3 Rn 96; Rudolph, Kaufrecht der Export- und Importverträge (1996), Art. 19 CISG Rn 13; Schlechtriem in: Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, 3. Aufl (2000), Art. 19 CISG Rn 20).
Art. 9 CISG can generally be seen as a further confirmation of the dispositive character of the CISG as it emphasizes the predominance of usages between the parties (Posch, in: Schwimmann, ABGB § 9 UN-K, Rn.1) Therefore, an assessment of contrary clauses which parties intended to include in their contract entails the necessity of a close and careful scrutiny. A deviation from Art. 19(1) CISG in the light of Art. 9 CISG and Arts. 6 and 8 CISG can e.g., be assumed if the parties perform their reciprocal obligations even though the order and acceptance contain contrary clauses and thus tacitly declare the remaining contract valid. (cf. Magnus in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, Wiener UN-Kaufrecht (CISG), 13. ed. (1999), Art. 19 CISG Rn. 25; Piltz, Internationales Kaufrecht (1993), § 3 Rn 96 ff; Janssen, Kollidierende Allgemeine Geschäftsbedingungen im internationalen Kaufrecht (CISG), wbl 2002, p. 453; Schlechtriem in: Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht, 3. ed. (2000), Art. 19 CISG Rn. 20.). This very argument was used by the Federal Supreme Court of Austria in the present case.Go to Case Table of Contents
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): [österreichisches] Jurisdische Blätter 1991, 120-122; Praxis des internationalen Privat- und Verfahrensrechts (IPRax) 1991, 419-421
CITATIONS TO COMMENTS ON DECISION
English:  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 19 para. 20
German: Tiedemann, Praxis des internationalen Privat- und Verfahrensrechts (IPRax) 1991, 424-427Go to Case Table of Contents