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CISG CASE PRESENTATION

Austria 11 February 1997 Supreme Court (Automobile case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/970211a3.html]

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

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Case identification

DATE OF DECISIONS: 19970211 (11 February 1997)

JURISDICTION: Austria

TRIBUNAL: Oberster Gerichtshof [Supreme Court]

JUDGE(S): Mag. Englelmaier (presiding judge), Dr. Bauer, Dr. Ehmayr, Dr. Steinbauer

CASE NUMBER/DOCKET NUMBER: 10 Ob 1506/94

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

CASE HISTORY: 1st instance LG Klagenfurt (28 Cg 201/90-30D) 28 December 1992 [partly affirmed] [CISG not mentioned]; 2d instance OLG Graz (3 R 88/93-40) 2 December 1993 [affirmed] [CISG not mentioned]

SELLER'S COUNTRY: Austria [defendant]

BUYER'S COUNTRY: Switzerland [plaintiff]

GOODS INVOLVED: Automobile


Case abstract

AUSTRIA: Oberster Gerichtshof 11 February 1997

Case law on UNCITRAL texts (CLOUT) abstract no. 190

Reproduced with permission from UNCITRAL

The defendant, an Austrian seller of imported Italian cars, sold a Lamborghini Countach to the plaintiff, a Swiss buyer. The seller, however, could not deliver the car to the buyer. The court held that since the car was purchased for personal use, in accordance with its article 2(a), the CISG was not applicable to the case. Nevertheless, the court stated that the CISG could have been applied to the case if the fact that the seller "neither knew nor ought to have known that the goods were bought for any such use" had been proved by the seller.

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Classification of issues present

APPLICATION OF CISG: No [Article 2(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 2(a) [Also relevant: Article 6 ]

Classification of issues using UNCITRAL classification code numbers:

2A [Exclusions from the Convention: purchases for personal, family or household use]

Descriptors: Scope of Convention ; Consumer sales

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=283&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-Austria website <http://www.cisg.at/10_150694.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=283&step=FullText>

Translation (English): Text presented below

Translation (Portuguese): CISG Brazil database <http://www.cisg-brasil.net/downloads/casos/automobile-case.pdf>

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-225 [200 n.547 (exclusions from the CISG)]; Honnold, Uniform Law for International Sales (1999) 48 [Art. 2(a)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) §: 2-5 n.29; Tuula Ämmälä, 5 Turku Law Journal (1/2003) Section 9; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 2 para. 8a

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Case text (English translation)

Queen Mary Case Translation Programme

Federal Supreme Court of Austria (Oberster Gerichtshof)

11 February 1997 [10 Ob 1506/94]

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

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

REASONING OF THE COURT

The Plaintiff [Buyer], who lives in Switzerland, seeks payment of 1,897,000 AUS (Austrian schillings) plus 4 % interest since service of process (7 September 1990) from Defendant [Seller], an importer of Italian cars.

The parties undisputedly concluded a contract for the sale of a Lamborghini Countach Anniversary for 2,000,000 AUS in March 1989, which was confirmed in writing by the [Seller] on 3 March 1990.

The [Seller] had sent a check for 187,000 AUS for the deposit plus interest, which the [Buyer] however did not cash in but handed it back to the [Seller] on 18 June 1991.

INITIAL POSITION OF THE [BUYER]

The [Buyer] claimed that the parties had concluded an oral contract, which contained "franco Villach September 1989" as the clause stating the place of performance and the corresponding date.

The deposit which had been agreed on had been paid as follows:

Prior to the sale at issue, the [Buyer] had paid 7,000 CHF (Swiss francs) as a deposit for a bargain sale of a Lamborghini which had not been realized. On 8 March 1983, he had effected a payment of further 15,000 CHF, which had not been contested by the [Seller]. Hence in consideration of an exchange rate of 1 CHF = 8.50 AUS, he had paid 22,000 CHF or 187,000 AUS, respectively. The [Seller] had sent a letter on 10 October 1989 stating that it would refuse performance and suggesting that [Buyer] purchase a car at the car rental company O.

Even though the [Buyer] had insisted that the [Seller] fulfill its contractual obligations and threatened to effect a covering purchase, the [Seller] still refused to perform.

Trying to reach a settlement out of court, the [Buyer] had even contacted the car rental company O. The latter had been willing to sell a comparable car, however, only for 700,000 CHF. The [Seller] had allegedly sold such a car to company O for 3,000,000 AUS.

Following the constant refusal of the [Seller] to perform its contractual obligation, the [Buyer] had finally purchased a car invoiced at 530,000 DM (German Marks) from company A. In consideration of an exchange rate of 1 DM = 7 AUS this covering purchase would amount to 3,710,000 AUS. The [Buyer] hence was entitled to claim 1,870,000 AUS from the [Seller], which remained if one deducted the purchase price of 2,000,000 AUS as agreed on in the contract and added the deposit of 187,000 AUS. The difference between the initial purchase price and the market price of such a car amounted to 2,500,000 AUS gross and 1,900,000 AUS net. This would rectify a claim for damages. The [Seller] had known prior to the conclusion of the contract that he had no license to sell a car abroad.

POSITION OF THE [SELLER]

The [Seller] sought the dismissal of the claim. It stated that the contract had not been concluded with the [Buyer] but with the public limited company F.

During the negotiations, the [Seller] had pointed to the fact that as an importer for Austria it would have to ask the manufacturer first if it wanted to sell cars abroad.

It had been agreed that in case the manufacturer approved of the sale additional costs as well as 32% VAT would have to be added to the price of 2,000,000 AUS.

The [Buyer] then had promised to obtain a license plate from Vorarlberg (Austria) to prevent problems for the [Seller]. The manufacturer had declared that the [Seller] would lose its license to sell Lamborghinis in Austria if it started to sell cars abroad and thus competed with other Lamborghini importers. The [Seller] had informed the [Buyer] about this, the latter had, however, insisted on performance.

It had been impossible for the [Seller] to deliver a car to Switzerland as it would have lost its license for Austria. The potential damage of such a loss would have been much higher than the potential profit resulting from the contract with the [Buyer].

As a main requirement, namely the approval of the manufacturer, had not been fulfilled, the contract was to be seen as dissolved.

It would have been possible for the [Seller] to deliver, hand over and register the car in Austria in September 1989. The [Buyer] however had never communicated that he would be willing to accept the car in Austria and to register it there. The agreement of 3 March 1989 had expressly contained the clause that the [Buyer] had to deposit 10% of the actual purchase price, i.e., 200,000 AUS. Even though the [Seller] had reminded the [Buyer] of this, the [Buyer] had only deposited less than 180,000 AUS. Therefore, the contract had not come into existence.

In respect to the purchase price, the agreement of 3 March 1989 had stated, that a potential rise of the prices would be at the risk of the [Buyer] until the delivery had actually taken place. In March 1989 and on 15 September 1989, respectively, the price had risen by 10%. Hence the purchase price had amounted to 2,420,000 AUS in September 1989 -- in addition with the VAT (720,000 AUS), the final price had amounted to 3,194,400. If this was deducted from the price of the covering purchase which had neither been communicated to the [Seller] nor paid by the [Buyer], the damage could at an outside estimate amount to 515,600 AUS. A comparable Lamborghini could have been obtained for 330,000 DM at that time. The [Buyer] had been obliged to buy the cheapest available car in order to reduce the damage. The [Buyer] could have (typing error in original version) bought the Lamborghini in dispute from company A in Munich in autumn 1989 for 2,300,000 AUS. The [Buyer] had resold the car it had received following the covering purchase and had hence obtained a sum of money equivalent to the initial purchase price. Therefore, he had not incurred any damages.

The [Buyer] had not rescinded the contract. He had also not demanded supplementary performance. Therefore, the [Buyer] was only entitled to claim performance instead of damages.

ADDITIONAL SUBMISSION OF THE [BUYER]

The [Buyer] replied that the public limited company F had expressly declared by letter on 27 November 1990 that it had never been a contractual partner of the [Seller] but solely a contractual partner of the [Buyer]. This company had assigned all potential claims against the [Seller] to the [Buyer]. The contact between the parties had been initiated by Roland R. The latter had bought a used Lamborghini Countach from the [Seller]. In the course of this purchase, Roland R. had acted as an intermediary for the bargain sale of a Lamborghini to the [Buyer] at a price of 183,000 CHF. Roland R had handed over 7,000 CHF on behalf of the [Buyer] at the time he picked up his own Lamborghini in Villach. When the [Buyer] had wanted to pick up the bargain Lamborghini and hence had contacted the [Seller] via phone, the latter had informed him that the sale would be problematic as the original owner of the car was not willing to sell anymore. The [Seller] had, however, stated that the delivery of a new Lamborghini Countach would be possible in autumn 1989. Therefore, the contract for the bargain sale of the Lamborghini had been replaced by a contract for the sale of a new Lamborghini Countach. The deposit for the bargain sale had been credited for the new contract and a further 15,000 CHF had been paid on 8 March 1989 as a further deposit as agreed on. Not until its letter of 19 October 1989, had the [Seller] stated that the deposit had not been fully paid. The purchase price of 2,000,000 AUS had been fixed during these negotiations. Additional payments -- in particular the VAT -- had never been mentioned. In August 1989, the [Seller] had even declared that the car would be available soon. It had not pointed to any problems in respect to the sale. After the car had been delivered to the [Seller], the [Seller] had communicated this to the [Buyer] stating that details would be provided via letter. The promised letter had been sent on 19 October 1989 which however contained for the first time the declaration that the car could not be delivered.

JUDGMENT OF THE COURT OF FIRST INSTANCE

The Court of First Instance held that the [Seller] would be liable to pay 835. 760 AUS plus 4 % interest since 4 September 1990 and dismissed the remainder of the claim.

The Court of First Instance ascertained the facts as follows:

The [Seller] is an importer for Lamborghinis in Austria. According to its contract of import, the [Seller] is allowed to sell cars in Austria, but is denied the right to sell cars to customers who want to take the car abroad. The manufacturer has been denying any exceptions since 1988/1989. On 1 March 1989, Roland R, a friend of the [Buyer] handed over 7,000 CHF to the [Seller] as a deposit for a conciliatory sale of a used Lamborghini Countach. Shortly afterwards, the [Seller] informed Roland R. that the owner of the Lamborghini was no longer willing to sell but that he could offer a new Lamborghini Countach Anniversary to the [Buyer]. The purchase price would amount to 2,000,000 AUS. Roland R. explained that he would talk to the [Buyer] and asked for a fax confirming the offer.

The [Seller] confirmed its offer via fax on 3 March 1989 stating that it would deliver a Lamborghini in September at a price of 2,000,000 AUS franco Villach. "Potential rises in price will be added. The price as stated above is only valid in respect to the sale of a carburetor-car. The deposit of 10% has to be paid immediately." Following this Roland R. agreed via telephone -- acting as an agent for the [Buyer], who was also present -- with the [Seller] to replace the contract for the bargain sale of the Lamborghini Countach with a contract for the sale of a new Lamborghini. The terms were stated as follows: Purchase price 2,000,000 AUS. Rises in price have to be paid for by the [Buyer] until the actual handing over of the car.

The [Buyer] knew that 2,000,000 AUS was a net price to which 32% VAT had to be added in case of a sale in Austria. The payment of the VAT has not been discussed. Delivery to the [Buyer] in September 1989 in Villach. The payment of 7,000 CHF was to be used as a deposit for the new car., the remainder was to be transferred to the bank account of the [Seller]. A written contract was to be concluded.

Following this conversation, the [Buyer] himself talked to the [Seller] and agreed to immediately transfer the further deposit of 15,000 CHF to the bank account of the [Seller]. The [Seller] received 122,736.37 AUS on 13 March 1989. It could not be ascertained that the [Seller] was willing to waive the payment of the further 10% deposit. On the contrary, the [Seller] wrote to the [Buyer] on 25 March 1989 and asked for the payment of a further 20,284 AUS within eight days.

The [Buyer], who is an employee of company F in M, concluded the contract privately (and not acting as a company representative). It could neither be ascertained that the contract was intended as a transaction for delivery by a fixed date, nor that the contract was concluded dependent on the approval of the manufacturer, nor that the [Seller] actually informed the [Buyer] or Roland R. about the potential difficulties, nor that the contract was dependent on the payment of the deposit.

After the contract had been concluded, the [Seller] contacted the manager of Lamborghini in order to obtain permission to sell a car in Switzerland. The latter informed him that the sale to a Swiss was not possible. This was due to the fact that, on the one hand, the contract of import between Lamborghini and the [Seller] contained a clause which stipulated a restraint on competition between importers and that, on the other hand, the requirements to register the car in Switzerland had not been met. The [Seller] continued in the following to try to obtain the license virtually during the whole summer of 1989. In September 1989, the [Seller] told Roland R. for the first time during a telephone call that a delivery to Switzerland would be difficult because of the manufacturer. The [Seller] asked whether it would be possible for the [Buyer] to register the car in Austria. Roland R. informed the [Seller] after consulting the [Buyer], that the latter would agree to register the car in Vorarlberg with the help of a friend.

In September or at the beginning of October 1989, the [Seller] informed Roland R. that the car had been delivered to its premise and that it would give him a ring within the next few days in order to announce the delivery and the handing over of the car. In the following the [Seller] talked to the manager of the manufacturer and told him that the [Buyer] would register the car in Austria for a few months. The manager immediately forbade this. Due to this, the [Seller] informed the [Buyer] via letter on 19 October 1989 as follows:

" We regret to have to inform you that due to a reorganization of the Lamborghini company any export of a car could entail the loss of the contract of import. It is hence impossible for us to deliver the Lamborghini Countach Anniversary as promised. There might be a chance to obtain the car via company O, as the latter is able to invoice the car and to sell it abroad. We have already informed company O about this and delivered the car to this company's premises. We hence ask you to contact company O directly and attach a check for 187,000 AUS."

Following this letter, Roland R called the [Seller] and questioned it about the whereabouts of the car. The [Seller] explained that it had found a way to avoid the restrictions in the contract of import and to sell the car to the [Buyer]. It could sell the car to company O -- which already possessed it -- which could let it to the [Buyer] for a few months and then sell it to him on a commission basis. Roland R. agreed after consulting the [Buyer] .

However, after the [Buyer] had been informed by Roland R., who had talked to the manager of company O, that the purchase price of the car would now amount to 700,000 CHF, he was no longer willing to agree to the proposal of the [Seller].

The attorney of the [Buyer] demanded performance of the contractual obligations of the [Seller] within three days via letter on 16 November 1989 and threatened to claim damages.

After the [Seller] had explained on the very same day that it would not be possible for him to deliver the car to Switzerland without losing its contract of import, the attorney of the [Buyer] demanded anew the performance of the contractual obligations setting a deadline on 30 November 1989 and 12 December 1989.

On 19 December, the attorney of the [Buyer] wrote another letter setting a fourteen day deadline for performance and threatened to effect a covering purchase.

The attorney of the [Seller] replied on 27 December 1989 that the [Seller] could not be held responsible for the fact that it was not allowed to sell a car in Switzerland. The [Seller] had not been aware of the respective clause in the contract of import. In order to avoid great economical losses the [Seller] could not fulfill the contract. The [Buyer] had accepted the avoidance of the contract tacitly by accepting the check.

The manager of company O offered the car to the [Buyer] on 30 January 1990 for 700,000 CHF. The [Buyer] obtained an offer from two different German car dealers -- who were not official Lamborghini commission-agents. These offered on 2 February 1990 and on 28 February 1990 to sell a Lamborghini Countach Anniversary for 560,000 DM net or 650,000 DM net, respectively. A lot of different car dealers in Switzerland and Germany affirmed such prices.

The [Buyer] bought a Lamborghini Countach Anniversary in March 1990 for 530,000 DM. The manager of the officially authorized importer for Lamborghini in Germany acted as an intermediary for this sale.

The sale was transacted via company A, seated in Doha-Qatar and company T, seated in Montreal, Canada -- apparently to avoid the consequences of a clause in the contract of import similar to the one between Lamborghini and the [Seller]. Further details of this transaction could not be ascertained.

The [Buyer] paid 230,000 DM in cash and further 260,000 DM via check to the manager mentioned above. The latter transferred the 230,000 DM to company A and the check to company T.

The car was delivered directly from Italy to Switzerland. The customs clearance was effected by the public limited company F, acting as a wholesaler. This kind of customs clearance is calculated on the basis of customs duty per weight, the sales tax has to be paid at the time of the sale. The [Buyer] had to pay 1,307 CHF as customs duty. Company A invoiced as follows:

"Invoive (probably typing error) we deliver to you: 1 Lamborghini Countach black/creme Ch.-end.-No. 12038 Preis (price) total 530,000 DM."

It could not be ascertained that the [Buyer] had resold the car and received a payment comparable to the purchase price it had to pay.

Between March and September 1989, two 10% rises in price took place in respect to Lamborghinis.

The recommended increase in the retail price of a Lamborghini Countach Anniversary (basic carb edition) justified a price of 2,000,000 AUS net in March 1989. The car which had been delivered in September 1989 from the manufacturer to the [Seller] had as extra equipment a metallic black color, an electric aerial, a Keder (leather) furnishing and leather suitcases worth 144,000 AUS net.

The purchase price amounted to 2,594,240 AUS net due to the rise in price in September 1989. Hence, in case of a sale in Austria the purchase price -VAT (32 % 830,156.80 AUS) included -- amounted to 3,424,396.80 AUS.

The catalogue price of a Lamborghini Countach Anniversary amounted to ca. 1,900,000 AUS in Germany in 1989. It was impossible for the [Buyer] to obtain a car in 1989 or 1990 at such a price in Germany. This is due to the fact that the Lamborghini Countach Anniversary was produced as a limited edition of 400 cars.

Collectors and connoisseurs were very keen on that car which resulted in sales prices of up to 4,500,000. AUS in Germany or even 4,700,000 AUS in Switzerland.

Official Lamborghini commission-agents are not allowed to increase the recommended retail prices. An intermediate dealer on the other hand may set collector's prices at any time. Company A in Doha-Quatar is not an official Lamborghini commission-agent.

It could neither be ascertained that the [Seller] had informed the [Buyer] about the fact that a Lamborghini Countach Anniversary could be obtained from a non-official Lamborghini commission-agent in Austria nor that other companies in Austria, Germany and Switzerland had offered such a car for 2,000,000 AUS to the [Buyer].

The Court of First Instance classified the contract which has been concluded between the parties in March 1989 as a commercial sale according to 373-382 HGB [*].

The contract had not been concluded dependent on the approval of the manufacturer. Likewise, the payment of a deposit could not be seen as an indispensable condition. It was to be seen as a partial payment or an on account payment respectively. The [Buyer] had rescinded the contract. According to 921 ABGB [*] this rescission did not affect a possible claim for damages due to non-performance. The whole damage incurred could be recovered (not only the difference). The [Seller] could be held liable. The [Seller] had been bound to inform the [Buyer] about the possible export-prohibition prior to the actual conclusion of the contract and it had been bound to include the approval of the manufacturer as a condition into the contract. The calculation of the damages could be effected abstractly or concretely. However, the obligation to mitigate had to be included into the calculation. The [Seller] was entitled to oppose the amount of damages by proving that the actual damage had been less. The aggrieved party was entitled to effect a reasonable covering purchase. The decisive point in time was -- in case of a non-performance -- the time of the dissolution of the contract. The purchase price as requested by a seller in general contained VAT as long as it had not been agreed on otherwise or as long as no differing trade customs existed. The calculation had to comprise the difference between the purchase price of September 1989 (including the 10% rise) of 2,594,240 AUS and the purchase price of the covering purchase in March 1990 of 3,430,000 AUS. Hence the damage would amount to 835,760 AUS.

As the [Seller] had sent a check for 187,000 AUS for the deposit, the [Buyer] was not entitled to claim this amount.

Both parties appealed against this judgment. The [Buyer] solely appealed against the dismissal of the claim for the refunding of the deposit. The [Seller] appealed against the whole judgment.

JUDGMENT OF THE COURT OF APPEAL

The Court of Appeal dismissed the appeal of the [Seller] and partially allowed the appeal of the [Buyer]. It hence changed the judgment of the Court of First Instance in respect to the dismissal of the claim for the refunding of the deposit. It held that the [Buyer] was entitled to claim 1,022,760 AUS plus 4 % interest since 4 September 1990 and dismissed the claim for the payment of a further 874,240 AUS.

It stated that further appeal was not admissible.

The Court of Appeal affirmed the facts as ascertained by the Court of First Instance except for the amount of the covering purchase. It stated that this purchase amounted to 490,000 DM. Due to this fact, the further appeal of the [Buyer] had to be dismissed. The sole unreasonableness of the performance would not be a sufficient excuse. The [Buyer] was hence entitled to claim the damage incurred due to the non-performance of the [Seller] according to 921 ABGB [*]. He would be entitled to be placed in a position similar to the one stipulated by the contract and to choose between an abstract or an actual calculation of damages. In case of a calculation of the actual damage - as initially claimed by the [Buyer] -- the damage would be the difference between the purchase price as agreed on and the price of the covering purchase. As it could neither be ascertained nor assumed that the price of 490,000 DM contained a sales tax which had to be refunded to the [Buyer] and paid by a seller, the difference was to be calculated on the net prices. Even if a sales tax had been refunded to the [Buyer], the calculation of the [Seller] would be wrong as the percentage of such a sales tax could not be ascertained. The percentage of this sales tax and the calculation of the net prices based upon this hence had to be proved. The [Seller] had failed to bring such proof.

JUDGMENT OF THE SUPREME COURT OF AUSTRIA

The [Seller] appealed against the judgment of the Court of Appeal. It states that the Court of Appeal's judgment was legally erroneous and suffered from procedural defects.

The [Seller] seeks the judgment to be changed and the dismissal of the complete claim or to annul the judgments alternatively.

The [Buyer] seeks the extraordinary appeal of the [Seller] to be dismissed.

REASONING

The appeal (Revision) is not admissible.

In case of an extraordinary appeal the reasons have to be stated why -- in contrast to the judgment of the Court of Appeal according to 502 (1) ZPO [*] -- an appeal should be allowed according to 506 (1) ZPO.

Pages 2 to 5 (pp. 350-352) do not contain legal questions. These do only try to contest the ascertained facts -- as correctly stated by the response of the [Buyer]. This, however, does not justify an extraordinary appeal according to 503 ZPO.

The submission that the [Buyer] had been aware of the clause which hindered a sale abroad prior to the conclusion of the contract and that both parties had taken for granted that the approval of the manufacturer was a condition to the contract, does not constitute a legal basis for an appeal. The [Seller] has solely stated in this respect that during the negotiations preceding the conclusion of the contract it had expressly pointed to the fact that the delivery was dependent on the approval of the manufacturer. However, the Court of First Instance could neither ascertain that such a condition has been included into the contract nor that the [Buyer] had talked to the [Seller] or Roland R prior to September 1989 about potential difficulties in respect to a delivery to Switzerland. As the [Seller] has not brought forward any arguments during the proceedings in the Court of First Instance and as these allegations have not been ascertained by the Court of First Instance, it is irrelevant whether the Supreme Court has already decided on the question whether the knowledge of a buyer of a possible necessity to obtain the approval of the manufacturer could be seen as the subject matter of a contract concluded by an importer. Hence, the submissions in respect to the mitigation are not based on the correct factual background.

The [Seller] has neither claimed nor have the courts ascertained that the invoice of company A from Qatar included sales tax.

Both [Buyer] and [Seller] have not argued during the proceedings in the Court of First Instance that their sales contract was governed by the UN Convention on Contracts for the International Sale of Goods (CISG, BGBl [*] 1988/96). On the other hand, neither during appeal nor during revision did [Buyer] ever rely on the non-applicability of the CISG.

According to Art. 1(1) CISG, the Convention applies to contracts of sale of goods between parties whose places of business are in different States, (a) when the States are Contracting States or (b) when the rules of private international law lead to the application of the law of a Contracting State.

No possible link to the CISG is provided by Art. 1(1)(a) in this case, because the sales contract was concluded on 3 March 1989 while Switzerland as [Buyer]'s place of business did not accede to the Convention until 1 March 1991 (Karollus, UN-Kaufrecht, 10).

An indirect link could, nevertheless, be established in accordance with Art. 1(1)(b) CISG. Neither party submitted that there had been an express or implied preclusion of Austrian law, and such preclusion is not apparent from the circumstances, as well ( 35(1) IPRG [*]). Therefore, 36 IPRG is applicable pursuant to 35(2) IPRG. It provides that synallagmatic contracts under which the preponderant duty of either party (here: [Buyer]) is payment of money will be governed by the law of that State in which the other party (here: [Seller]) has its residence, respectively -- if acting as entrepreneur -- its place of business.

However, even though the CISG can thereby be applicable under Art. 1(1), it does not apply to sales of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use, Art. 2(a) CISG. The intended and not the actual use of the goods has to be considered (Karollus, UN-Kaufrecht, 25 with reference to von Caemmerer/Schlechtriem/Herber, Art. 2 para. 1). In this respect, the Court of First Instance held that [Buyer], being an employee, did not conclude the contract as a business transaction, but intended to put the car to personal use. It follows from the wording of Art. 2(a) CISG that the seller bears the burden to prove that the counter-exception is met (Karollus, 26 with reference to Czerwenka, Rechtsanwendungsprobleme, 150). In the present case, there is no need to consider the opinion of von Caemmerer/Schlechtriem/Herber, Art. 2 paras. 15 et seq., under which the allocation of the burden of proof depends on the party that wants to rely on the applicability of the CISG. As stated above, neither party has relied on the application of the CISG.

The extraordinary appeal has to be dismissed as the requirements of 502 ZPO [*] have not been met.

The decision on costs is based on 41, 50 ZPO.


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Switzerland is referred to as [Buyer] and Defendant of Austria is referred to as [Seller].

Translator's note on other abbreviations: ABGB = Allgemeines Bürgerliches Gesetzbuch [Austrian Civil Code]; BGBl = Bundesgesetzblatt [Austrian Federal Law Gazette]; HGB = Handelsgesetzbuch [Austrian Commercial Code] IPRG = Bundesgesetz über das Internationale Privatrecht [Austrian Federal Code on the Conflict of Laws]. ZPO = Zivilprozessordnung [Austrian Code of Civil Procedure].

Amounts in the former currency of Austria [Austrian schillings] are indicated as [AUS]; Amounts in the former currency of Germany [Deutsche Mark] are indicated as [DM]; Amounts in the currency of Switzerland [Swiss francs] are indicated as [CHF].

** 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.

*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.

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