CISG CASE PRESENTATION

Case identification

DATE OF DECISION: 19920220 (20 February 1992)

JURISDICTION: Austria

TRIBUNAL: BG-H Wien (Vienna) [BG-H = Bezirksgericht für Handelssachen = District Court for Commercial Matters]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 9 C 3486/90w

CASE NAME: Austrian case citations do not generally identify parties to proceedings

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Austria (defendant)

GOODS INVOLVED: Shoes

Editorial remarks

EDITOR: Albert H. Kritzer

CISG issues ruled upon:

Applicability. The contract was between a seller from Italy and a buyer from Austria. It was concluded at a time when the CISG was in effect in Italy but not in Austria. The court ruled that the CISG could not be applied pursuant to Article 1(1)(a). The court further stated:

"Article 1(1)(b) provides that the Convention is applicable to contracts of sale of goods between parties whose places of business are in different States when the rules of private international law lead to the application of the law of a Contracting State.

"Therefore, it must first be determined which substantive law ('law of the contract') is applicable under Sections 35 et seq. IPRG [Austrian Private International Law Act]. In this context, attention has to be paid to the fact that the Austrian IPRG employs the technique of reference to a foreign law in its totality (Section 5 IPRG). Thus a reference primarily aims at the rules of private international law of the country to which the IPRG refers; a reference back [renvoi] or a reference forward [to the law of a third country] is given effect (Section 5 IPRG). Such a chain of references by the rules of private international law has to be followed independently from the Vienna Convention, until a final reference to a specific national substantive law is found. Then, the only decisive issue is whether this country is a Contracting State of the Vienna Convention (see Karollus, UN-Kaufrecht, pp. 32 et seq.).

"Pursuant to Section 36 IPRG, bilateral contracts under which at least the preponderant part of one party's obligation is the payment of money are to be analyzed according to the law of the country in which the other party has his domicile or -- as in the present case -- his place of business.

"This would result in application of Italian private law and would make application of the Vienna Convention possible. However, Italy is a signatory of the Hague Convention Relating to the Law Applicable to the International Sale of Movable Goods 1955, which replaces -- within the bounds of its scope -- national conflicts laws. It makes contracts for the sale of movable tangible goods and contracts for the supply of goods to be manufactured or produced subject to the national law of the country in which the seller, at the time of receipt of the order, had his domicile or place of business. Absent an explicit agreement to the contrary, for the form and the time periods to be observed with respect to inspection of the goods, notice of lack of conformity, and the measures to be taken in case of rejection of the goods, the relevant law is the domestic law of the country in which, pursuant to the contract, the delivered movable goods were to be inspected. This constitutes, for these special issues, a reference back [renvoi] to Austrian substantive law which is relevant pursuant to Section 5(2) IPRG (see Potzmann, PZ pp. 262 et seq.).

"Since, in this case, it was precisely the question of a valid and timely notice of lack of conformity and the resulting claims for damages on the part of the seller which were in issue, an application of the Vienna Convention is entirely precluded due to the reference back to Austrian substantive law."

Citations to case abstracts, texts, and commentaries

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts