- 19 U 5/08
- Oberlandesgericht Karlsruhe
CONTRACT FOR SUPPLY OF GOODS TO BE MANUFACTURED OR PRODUCED - EQUIVALENT TO CONTRACT OF SALE UNLESS BUYER BOUND TO SUPPLY A SUBSTANTIAL PART OF MATERIALS (ART. 3(1) CISG)
JURISDICTION - EUROPEAN COUNCIL REGULATION NO. 44/2001 ON JURISDICTION AND RECOGNITION AND ENFORCEMENT OF JUDGEMENTS IN CIVIL AND COMMERCIAL MATTERS - JURISDICTION OF COURT FOR PLACE OF DELIVERY
A German seller and an Austrian buyer entered into a contract for the sale of remote indication devices. The seller manufactured the devices in Germany and delivered them to the buyer in Austria. Subsequently, the seller sued the buyer for payment of the purchase price in a German Court, which held itself competent to hear the case on the basis of Art. 5 (1), lett. b), second hyphen, of Regulation n.44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereinafter: the Regulation), according to which, if the contract is for provision of services, a person domiciled in a member State may be sued in the courts for the place of performance where, under the contract, the services were provided or should have been provided. The buyer appealed.
The Court of Appeal reversed. In doing so, it held that, contrary to what the first instance Court had affirmed, the contract at hand had to be deemed not a contract for the provision of services, but a contract for the sale of goods. In fact, as it can also be derived from Art. 3 CISG, contracts for the supply of goods to be manufactured or produced have to be qualified as contracts for the provision of services only if the obligation to provide services is more important than the obligation resulting from the sales contract.
Since in the case at hand the seller had to manufacture the goods using its own material, the Court found that there was a contract for the sale of goods for the purpose of Art. 5(1), lett. b), first hyphen, of the Regulation, according to which if the contract is for a sale of goods, the relevant place of performance for establishing whether a Court is competent over a case is the place in a Member State where, under the contract, the goods were delivered or should have been delivered. Such place being in Austria, German Courts lacked jurisdiction to adjudicate on the case.
Original in German:
- not yet available
- available at the University of Pace website, http://cisgw3.law.pace.edu/cases/080612g1.html}}