|An Austrian buyer ordered goods from a Swiss seller. After the buyer had paid a certain amount of money as a deposit, the transaction was cancelled by mutual agreement. The seller offset the deposit against an outstanding balance of the purchase price from a former transaction. The buyer commenced an action before an Austrian Court claiming restitution of the deposit.
In order to determine whether it had jurisdiction, the Court of first instance applied Art. 5(1) of the EC Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters (Lugano 1988), under which a person domiciled in a Contracting State (i.e. the seller) may be sued in the court of the place of performance of the obligation in question (in the case at hand: the restitution of the deposit). The Court applied Art. 57 CISG to determine the place of restitution of the deposit, as at the time of the conclusion of the contract the parties had their place of business in contracting States (Austria and Switzerland) (Art. 1(1)(a) CISG). The Court found that the place of restitution of the deposit under Art. 57 CISG was the seller's place of business. As the seller's place of business was not located in Austria, it denied its jurisdiction.
The appellate and the Supreme Court reversed the decision of the lower Court and acknowledged the international jurisdiction of the Austrian courts based upon domestic private international and procedural rules. In the opinion of the higher Court the place of performance of the obligation in question under the Lugano Convention was not to be determined under Art. 57 CISG, as Art. 57 CISG covers only the place of payment of the purchase price. The place of performance of other monetary payments, including restitution of the contract price, is not covered by Art. 57 CISG. In addition, with respect to the restitution of the deposit in question, the Court clarified that the restitution of a deposit is an obligation arising from an unjustified enrichment, which is a matter not covered by CISG.