Date: 03.04.2008
Country: Austria
Number: 1 Ob 205/07i
Court: Oberster Gerichtshof
An Austrian seller and a German buyer entered into a contract for the sale of 32 violins. Once the goods were delivered, the buyer did not pay the purchase price. The seller then filed suit before an Austrian Court to recover the agreed sum. The seller asserted that the Austrian Court had jurisdiction on the basis of Art. 57(1) CISG (CISG being the substantive law applicable to the contract) and that such a provision should prevail over the rules set out in the Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter the Regulation).

Both the Court of first instance and the Court of Appeal dismissed the claim for lack of jurisdiction.

The seller filed an extraordinary appeal (auĂźerordentlicher Revisionrekurs) before the Supreme Court alleging that the Supreme Court had never explicitly addressed the issue of the relationship between Art. 5(1)(b) of the Regulation and Art. 57(1) CISG with respect to a claim for payment of the purchase price.

The Supreme Court declared the seller’s appeal admissible but it ultimately rejected it. In doing so, it affirmed that under the Regulation the decisive factor with respect to jurisdiction is the place where the characteristic performance has or should have been rendered. In the case of the sale of goods, the characteristic performance is delivery. Such a criterion applies to all obligations under the contract, including the payment of the purchase price, and as long as the Regulation applies, Art. 57(1) CISG cannot apply. In the case at hand, since Germany was the place where the goods had been delivered according to the contract, Austrian Courts did not have jurisdiction to hear the case.