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| An Austrian company (the buyer) that had acquired luxury lamps over a period of time (1998-1999) from a Danish producer (the seller), brought an action before an Austrian Court to recover a part of the price paid, alleging that it had returned to the seller already paid goods under an agreement to this effect. The seller objected that the Court had no jurisdiction to hear the case.
The first instance Court’s decisions (Landesgericht St. Poelten of 5 March 2004 and of 26 April 2004) accepted the seller’s contention. The appellate Court (Oberlandesgericht Wien of 15 October 2004, Nr. GZ 2 R 183/04b, 2 R 184/04z-31), on the contrary, deciding by way of recourse on the question of jurisdiction, affirmed the jurisdiction of Austrian courts on the basis of Art. 5(1) of the EC Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters (Brussels 1968) and Art. 57(1)(a) CISG, which was the substantive law applicable to the contract. Art. 57(1)(a) CISG, which provides that the price must be paid at the seller’s place of business absent a different agreement of the parties, can well be applied by analogy, according to the appellate Court, to other monetary obligations, as an expression of the general principle that the obligations to pay a sum of money must be performed at the creditor’s place of business. In reaching this conclusion the Court referred to a previous decision of the Supreme Court stating the same principle (Oberlandesgericht 18 December 2002, see Abstract and Fulltext in UNILEX). In the case at hand, since the obligation consisted in the return of a part of the price unduly paid, the buyer could bring action at its own place of business (Austria), being the creditor of such an obligation. The Supreme Court declared the inadmissibility, under Austrian procedural law, of the seller’s recourse against the appellate Court's decision on the question of jurisdiction. |