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CISG CASE PRESENTATION

Austria 10 September 1998 Supreme Court [2 Ob 208/98x] (Rotors case)
[Cite as: http://cisgw3.law.pace.edu/cases/980910a4.html]

Primary source(s) of information for case presentation: CISG-Austria website

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Case identification

DATE OF DECISIONS: 19980910 (10 September 1998)

JURISDICTION: Austria

TRIBUNAL: Oberster Gerichtshof [Supreme Court]

JUDGE(S): Dr. Angst (presiding judge), Dr. Graf, Dr. Schinko, Dr. Tittel, Dr. Baumann

CASE NUMBER/DOCKET NUMBER: 2 Ob 208/98x

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

CASE HISTORY: 1st instance Handelsgericht Wien (GZ 15 Cg 253/96I-10) 26 January 1998; 2d instance Oberlandesgericht Wien (GZ 1 R 46/98m-14) 4 May 1998

SELLER'S COUNTRY: Austria (defendant)

BUYER'S COUNTRY: Germany (plaintiff)

GOODS INVOLVED: Rotors for heat exchangers


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 31

Classification of issues using UNCITRAL classification code numbers:

31A [Place for delivery: contracts involving carriage]

Descriptors: Delivery ; Jurisdiction

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Editorial remarks

Excerpt from analysis of Austrian case law by Willibald Posch & Thomas Petz*

        * "Austrian Cases on the UN Convention on Contracts for the International Sale of Goods", 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 1-24, at 14-15.

Delivery ; Jurisdiction. "On 10 September 1998, the Austrian Supreme Court rendered two decisions [2 Ob 208/98x (rotors for heat exchangers) and 2 Ob 221/98h (satellite receivers)] that were occasioned by the adoption of the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters that entered into effect on 1 September 1996.

[Article 5 No. 1 of this Convention states that a party to an international contract domiciled in a Contracting State may launch proceedings for breach of contract by the other party in the court of the place where performance is due, provided that this is a court of a Contracting State.]

"In order to determine the meaning of 'place of performance' in Article 5 No. 1 of this Convention, the Austrian Supreme Court had to interpret the contractual terms 'free construction site Vienna' [Case 20b 208/98x] and 'free domicile Klagenfurt' [Case 2 Ob 221/98h]. In these two cases, the German sellers claimed that these contractual terms would indicate that the respective places of performance were located in Austria, and that, under the Lugano Convention, they were entitled to sue the Austrian buyers in Austrian Courts. As CISG applied to both Austrian-German cross-border sales, the place of performance had to be determined in accordance with Article 31 CISG.

"The Court held that, if uniform substantive law applied, the contractual obligation to perform at a certain place would have to be interpreted pursuant to the relevant provisions of the respective uniform law. And rejected the claimants' arguments. With reference to the commentaries on the CISG edited von Caemmerer/Schlechtriem by and Honsell, the Supreme Court argued that, according to Article 31 CISG, terms like the ones used in the contract in question were insufficient to constitute a place of performance and entail jurisdiction of the courts in the Austrian cities mentioned therein.

"In the first case [this case] [2 Ob 208/98x], the Austrian Supreme Court held that Article 31 contained provisions concerning the place for delivery. When the parties agreed on a certain place for delivery, they would envisage aspects such as the costs of the carriage of goods, the modalities of delivery, and the bearing of risk. It would be inappropriate to combine these issues with matters of jurisdiction, especially, if the place for delivery is neither the place of business of the seller, nor that of the buyer. It should also be considered that, according to Article 31(a) CISG, the seller's place of business is the place of performance that is relevant for the determination of subject-matter jurisdiction.

"In the second judgment of 10 September 1998 [2 Ob 221/98h], the Austrian Supreme Court complemented its decision on Article 31 CISG by stating that terms imposing an obligation on the seller to ship the goods would not constitute jurisdiction at the place where the goods should arrive. The Court added, however, that it is a matter of interpretation whether a contractual term fixing the place for delivery is, at the same time, intended to determine special jurisdiction under Article 5 No. 1 of the Lugano Convention. As in the previous case, the appeal was dismissed and jurisdiction of the relevant Court of First Instance denied."

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-Austria website <http://www.cisg.at/2_20898x.htm>; [1999] Österreichisches Recht der Wirtschaft (RdW) 210.

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Willibald Posch & Thomas Petz, 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 1-24, at 14-5 [English translation of German commentary cited below] [Go to these commentaries for an excellent comprehensive analysis of Austrian case law on the CISG]; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.540; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 31 paras. 92, 94

German: Willibald Posch & Ulfried Terlitza, Internationales Handelsrecht (2001) 47-56, at relevant page

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Pace Law School Institute of International Commercial Law - Last updated August 5, 2005
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