Translation from German | SECOND DRAFT

Austrian Supreme Court (Oberster Gerichtshof)

Civil Panel 9, May 19, 1999
Index No. 9 Ob 13/99y

Source: Legal Information System of the Republic of Austria (www.ris.bka.gv.at),
Case Law Documentation (Supreme Court, Courts of Appeals, Regional Courts)

Translation by SCHÖNHERR Rechtsanwälte OEG, Vienna, Austria

Editor: Dr. Peter Konwitschka, Esq.

and Alston & Bird, LLP (NY)

Editor: Birgit Kurtz, Esq.

Key CISG provisions at issue:
Article 39

The Supreme Court, as the court of last appeal, through the chairman of the Panel of the Supreme Court, Dr. Maier, as presiding judge and through the Hofräte of the Supreme Court Dr. Steinbauer, Dr. Spenling, Dr. Hradil and Dr. Hopf as additional judges in the case of plaintiff Aldo A*****, represented by Dr. Erwin Bajc and Dr. Peter Zach, attorneys at law in Bruck an der Mur, versus defendant M***** Gesellschaft mbH i. L., *****, represented by Dr. Peter Schlösser and Dr. Christian Schoberl, attorneys at law in Graz, where the amount in dispute was S 448,496.70 plus interest and costs (amount in dispute on appeal: S 426,749.90), due to defendant's extraordinary appeal of the decision of the Higher Regional Court [Oberlandesgericht] Graz as the initial appellate court dated November 12, 1998, Index No. 2 R 194/98m-73,

has ordered:

Defendant's extraordinary appeal is dismissed pursuant to § 508a(2) ZPO¹ for lack of the prerequisites of § 502(1) ZPO (§ 510(3) ZPO).

Grounds for the decision:

The statement of facts contains no indication that the persons acting for and on behalf of the future company wanted to bind themselves in their own names. Whether they nevertheless are (continue to be) liable in addition to the company is not the subject matter of this dispute. The interpretation of the (explicit or implicit) legal declarations of the persons involved that finally effected the transfer of the purchase price claim to the company, does not have the considerable importance that goes beyond the individual case within the meaning of § 502(1) ZPO. It has not been shown that the court of appeals committed a gross error in its ratio decidendi, so that therefore, the prerequisites for a review by the Supreme Court are not fulfilled. The same is true for the denial of the timeliness of defendant's notice of lack of conformity pursuant to Art. 39(1) CISG (compare RIS-Justiz RS01074302). The cut-off period of Art. 39(2) can be used only if the buyer could not have examined the goods earlier or if he could not have discovered the lack of conformity earlier in spite of an examination or if he could not have given notice earlier in spite of the discovery of the lack of conformity (RV 94 BlgNR 17. GP, 593; Loewe, Internationales Kaufrecht p. 59; Schwimann/Posch, ABGB, 2d ed., vol. V, Art. 39 UNK [CISG] ¶ 9; Schwenzer in v. Caemmerer/Schlechtriem, Kommentar zum UN-Kaufrecht [commentary on the CISG] 2d ed., Art. 39 ¶ 22; RIS-Justiz RS0111002), which is not the case here; therefore, the relative notice period pursuant to Art. 39(1) CISG was decisive.

Footnotes:

¹ [Translator's note: "ZPO" stands for "Zivilprozeßordnung", the Austrian Civil Procedure Code.]

² [Translator's note: "RIS-Justiz" is the official legal database of the Austrian courts, "RS0107430" is a document number.]

³ [Translator's note: This is a citation to a document created by the Austrian Government during the course of enactment: "RV" stands for "Regierungsvorlage" or bill of the Austrian Government; "BlgNR" stands for "Beilagen zu den Stenographischen Protokollen des Nationalrats", the collection of exhibits to the protocols of the Austrian Parliament; "GP" stands for "Gesetzgebungsperiode" or legislative session.]