A private buyer domiciled in Austria ordered goods from a German company (the seller). A dispute arose concerning an alleged obligation of the seller towards the buyer to pay a sum of money as a bonus on the price for the goods. The Supreme Court had to decide inter alia on the issue of jurisdiction.
To this effect the Court applied Art. 5(1) of the EC Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters (Brussels 1968), which states that a person domiciled in a Member State may be sued at the place for performance of the obligation in question. In order to ascertain the place of performance for the seller’s alleged obligation to pay the bonus, the Court held CISG applicable, notwithstanding the fact that one of the parties was a consumer (who had assigned its claims to a consumer association) and without making any reference to Art. 2 CISG.
Though CISG does not expressly deal with the place of payment of monetary obligations other than the price, such as return of the price paid or damages, the Court held that Art. 57(1)(a) on payment of price at the seller’s place of business should be applied by analogy to all monetary obligations, being expression of the principle that absent a different agreement of the parties payment should be made at the creditor’s place of business. Therefore it found that the bonus had to be paid at the buyer’s domicile and affirmed the jurisdiction of Austrian courts.
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