CASE IDENTIFICATION | |||||||||||||||||||||||||||||||||||||
DATE OF DECISION: |
10/15/1998 (15 October 1998)
JURISDICTION:
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Austria
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TRIBUNAL:
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Oberster Gerichtshof (Austrian Supreme Court)
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JUDGE(S):
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Dr. Angst (presiding judge), Dr. Niederreiter, Dr. Schinko, Dr. Tittel, Dr. Baumann
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CASE NUMBER / DOCKET NUMBER:
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2 Ob 191/98x
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CASE NAME:
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Austrian case citations do not generally identify parties to proceedings.
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CASE HISTORY:
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1st instance Landesgericht Klagenfurt [a regional court] 26. März 1997, GZ 26 Cg 70/95-30; | 2nd instance Oberlandesgericht Graz [an appellate court] 11. März 1998, GZ 4 R 283/97p-40
SELLER'S COUNTRY:
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Austria (plaintiff)
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BUYER'S COUNTRY:
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Italy (defendant)
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GOODS INVOLVED:
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Wood
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| Case law on UNCITRAL texts (CLOUT) Reproduced with permission from UNCITRAL
CLOUT-NO.:
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240
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TEXT:
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| The [seller] was involved in the wood trade and had his place of business in Austria. The Austrian [buyer] had his place of business in Italy and was also involved in the wood trade. The [seller's] son signed a contract with the [buyer] for the purpose of taking part in the [buyer's] enterprise. The [seller] delivered wood for several years to the [buyer]. The [buyer] paid the [seller] a certain amount for the wood delivered, albeit without referring to a specific delivery or invoice. The [seller] claimed payment of the outstanding invoices as well as interest. The Supreme Court remanded the case to the court of first instance, holding that the place of business of the parties in different Contracting States and not the citizenship of the parties was relevant for a determination as to whether the CISG applied to the case. Accordingly, the Supreme Court decided that the CISG was applicable to the case under its article 1(1)(a). Moreover, owing to differences in the time limits for notice of lack of conformity between Austrian usages in the trade in wood and the CISG, the Supreme Court held that the court of first instance should examine whether the conditions set forth in article 9(2) CISG as regards usages had been met, in particular whether they were widely known and regularly observed in the trade.
| HEAD NOTES Edited by SCHÖNHERR Rechtsanwälte OEG, Vienna, Austria Dr. Peter Konwitschka, Esq.
CISG-ARTICLES:
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38, 39
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ENGLISH HEAD NOTES:
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Not available yet.
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GERMAN HEAD NOTES:
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| Classification of issues using UNCITRAL classification code numbers Edited by SCHÖNHERR Rechtsanwälte OEG, Vienna, Austria Dr. Peter Konwitschka, Esq.
9B2
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Implied agreement on international usage: observance by parties of the same type (widely known and regularly observed in trade)
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