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| An Austrian seller and a German buyer entered into a contract for the sale of an automobile with specific features that the buyer would use in its profession as known by the seller. According to the seller’s standard terms, accepted by the buyer and included in the sales contract, the seller would provide a warranty to any buyer acting as a consumer in terms of the Austrian Consumer Protection Act (ABGB), while for businessmen the Austrian Commercial Code (HGB) would apply. Soon after the delivery the automobile showed major defects. The buyer repeatedly took the automobile to get fixed, but the workshops were unable to resolve the problems. The buyer also asked the seller to have the car replaced, but the seller refused. The buyer then filed a suit against the seller, claiming termination of the contract and damages.
As to the First and Second Instance decisions see Oberlandesgericht Linz, 23.01.2006, in UNILEX. Contrary to the Appellate Court, the Supreme Court held that CISG did not apply to the case at hand, at least with respect to the contractual warranties, since the reference to Austrian law (namely, ABGB and HBG) in the seller's standard terms had to be seen as an implied exclusion of the Convention. Therefore, by applying Austrian law, the Court found that the buyer had not forfeited its right to terminate the contract and it was entitled to claim the repayment of the purchase price, plus damages. |