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CISG CASE PRESENTATION

Austria 19 May 1999 Supreme Court [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/990519a3.html]

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


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Case identification

DATE OF DECISION: 19990519 (19 May 1999)

JURISDICTION: Austria

TRIBUNAL: Oberster Gerichtshof [Supreme Court]

JUDGE(S): Dr. Maier (presiding judge), Dr. Steinbauer, Dr. Spenling, Dr. Hradil, Dr. Hopf

CASE NUMBER/DOCKET NUMBER: 9 Ob 13/99y

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

CASE HISTORY:1st instance [-]; 2d instance Oberlandesgericht Graz [an appellate court] (GZ 2 R 194/98m-73) 12 November 1998

SELLER'S COUNTRY: [ - ]

BUYER'S COUNTRY: [ - ]

GOODS INVOLVED: [ - ]


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 38 ; 39(1)

Classification of issues using UNCITRAL classification code numbers:

38A [Buyer's obligation to examine goods: as soon as practicable in the circumstances];

39A2 [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness

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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 18-19.

Examination of goods ; Lack of conformity notice, timeliness. "A dictum of the Austrian Supreme Court in its decision of 19 May 1999 … concerns the preclusive period of two years according to Article 39(2) CISG. The Court held that the period of two years may be exhausted in its entirety only in one of three cases. Firstly, if the buyer is unable to examine the goods at an earlier time. Secondly, if he or she, despite an examination, could not detect the non-conformity any earlier. Thirdly, if he or she, despite the detection of a non-conformity, could not give notice at an earlier time. When giving its reasons for this decision, the Austrian Supreme Court did nothing more than literally repeat a sentence in the explanatory report accompanying the draft bill for the ratification of the Convention by the Parliament.96…"

         96. Explanatory remarks, Protocol No. 94 of the Austrian National Assembly, 17th Session of Parliament, at p. 59.

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Citations to case abstracts, texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

German: [2000] Zeitschrift für Rechtsvergleichung (ZfRV) No. 1

CITATIONS TO TEXT OF DECISION

Original language (German): CISG-Austria website <http://www.cisg.at/9_1399y.htm>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Willibald Posch & Thomas Petz, 6 Vindobona Journal of International Commercial Law and Arbitration (2002) 1-24, at 18-19. [English translation of German commentary cited below] [Go to these commentaries for an excellent comprehensive analysis of Austrian case law on the CISG]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 22

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

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Case text (English translation)

Austrian Supreme Court (Oberster Gerichtshof)

Civil Panel 9, May 19, 1999
Index No. 9 Ob 13/99y

Source: Legal Information System of the Republic of Austria (www.ris.bka.gv.at),
Case Law Documentation (Supreme Court, Courts of Appeals, Regional Courts)

Translation by SCHÖNHERR Rechtsanwälte OEG, Vienna, Austria

Editor: Dr. Peter Konwitschka, Esq.

and Alston & Bird, LLP (NY)

Editor: Birgit Kurtz, Esq.

Key CISG provisions at issue:
Article 39

The Supreme Court, as the court of last appeal, through the chairman of the Panel of the Supreme Court, Dr. Maier, as presiding judge and through the Hofräte of the Supreme Court Dr. Steinbauer, Dr. Spenling, Dr. Hradil and Dr. Hopf as additional judges in the case of plaintiff Aldo A*****, represented by Dr. Erwin Bajc and Dr. Peter Zach, attorneys at law in Bruck an der Mur, versus defendant M***** Gesellschaft mbH i. L., *****, represented by Dr. Peter Schlösser and Dr. Christian Schoberl, attorneys at law in Graz, where the amount in dispute was S 448,496.70 plus interest and costs (amount in dispute on appeal: S 426,749.90), due to defendant's extraordinary appeal of the decision of the Higher Regional Court [Oberlandesgericht] Graz as the initial appellate court dated November 12, 1998, Index No. 2 R 194/98m-73,

has ordered:

Defendant's extraordinary appeal is dismissed pursuant to § 508a(2) ZPO [1] for lack of the prerequisites of § 502(1) ZPO (§ 510(3) ZPO).

Grounds for the decision

The statement of facts contains no indication that the persons acting for and on behalf of the future company wanted to bind themselves in their own names. Whether they nevertheless are (continue to be) liable in addition to the company is not the subject matter of this dispute. The interpretation of the (explicit or implicit) legal declarations of the persons involved that finally effected the transfer of the purchase price claim to the company, does not have the considerable importance that goes beyond the individual case within the meaning of § 502(1) ZPO. It has not been shown that the court of appeals committed a gross error in its ratio decidendi, so that therefore, the prerequisites for a review by the Supreme Court are not fulfilled. The same is true for the denial of the timeliness of defendant's notice of lack of conformity pursuant to Art. 39(1) CISG (compare RIS-Justiz RS0107430).[2] The cut-off period of Art. 39(2) can be used only if the buyer could not have examined the goods earlier or if he could not have discovered the lack of conformity earlier in spite of an examination or if he could not have given notice earlier in spite of the discovery of the lack of conformity (RV 94 BlgNR 17. GP, 59;[3] Loewe, Internationales Kaufrecht p. 59; Schwimann/Posch, ABGB, 2d ed., vol. V, Art. 39 UNK [CISG] ¶ 9; Schwenzer in v. Caemmerer/Schlechtriem, Kommentar zum UN-Kaufrecht [commentary on the CISG] 2d ed., Art. 39 ¶ 22; RIS-Justiz RS0111002), which is not the case here; therefore, the relative notice period pursuant to Art. 39(1) CISG was decisive.


FOOTNOTES

Translator's notes:

1. "ZPO" stands for "Zivilprozeßordnung", the Austrian Civil Procedure Code.

2. "RIS-Justiz" is the official legal database of the Austrian courts, "RS0107430" is a document number.

3. This is a citation to a document created by the Austrian Government during the course of enactment: "RV" stands for "Regierungsvorlage" or bill of the Austrian Government; "BlgNR" stands for "Beilagen zu den Stenographischen Protokollen des Nationalrats", the collection of exhibits to the protocols of the Austrian Parliament; "GP" stands for "Gesetzgebungsperiode" or legislative session.

All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated July 23, 2007
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