Data
- Date:
- 29-07-2004
- Country:
- Austria
- Number:
- 5 R 93/04t
- Court:
- Oberlandesgericht Graz
- Parties:
- --
Keywords
RELEVANT PLACE OF BUSINESS - PLACE OF BUSINESS WITH CLOSEST RELATIONSHIP TO CONTRACT (ART. 10(A) CISG)
DAMAGES (ART. 74 CISG) - SUBSTITUTE TRANSACTION - DIFFERENCE BETWEEN CONTRACT PRICE AND PRICE IN THE SUBSTITUTE TRANSACTION (ART. 75 CISG)
Abstract
Two companies, one having its place of business in Germany and the other one in Austria, operating a tunnel construction site in Germany, entered into a contract for the sale of construction equipment with an Austrian company. A dispute arose between the parties as the buyer failed to take delivery of all the concerned items and refused to pay the price.
The Court of first instance ruled in favor of the sellers. The buyer appealed.
As to the applicable law, the Court of Appeal, after noting that the concept of ‘place of business’ must be broadly interpreted and it does not necessarily coincide with the epicenter of commercial activity or the seat of the business management, considered the seller’s place of business to be the construction site where the contract had been concluded and where, according to the parties’ intention, the equipment had to be collected by the buyer. Indeed, pursuant to Art. 10(a) CISG, the construction site had the closest relationship to the contract and its performance. Therefore, the Court found that CISG was applicable pursuant to its Art. 1(1)(a).
The Appellate Court moreover stated that the sellers were entitled to recover damages in the amount corresponding to the difference between the price originally stipulated and the price in the substitute transactions they had entered into with respect of the goods refused by the buyer. In reaching such a conclusion, the Court found that the cover sale had been made in a reasonable manner and within a reasonable time after termination of the contract.
The Court also came to the conclusion that, since the buyer had itself asked for the effects of the contract being terminated after that it had received a letter by the seller setting a deadline for collecting the goods and threatening an action for damages or termination of the contract in the case of non fulfillment by the buyer, no further notice of termination by the sellers was necessary in the case at hand.
.
Fulltext
Two companies, one having its place of business in Germany and the other one in Austria, operating a tunnel construction site in Germany, entered into a contract for the sale of construction equipment with an Austrian company. A dispute arose between the parties as the buyer failed to take delivery of all the concerned items and refused to pay the price.
The Court of first instance ruled in favor of the sellers. The buyer appealed.
As to the applicable law, the Court of Appeal, after noting that the concept of ‘place of business’ must be broadly interpreted and it does not necessarily coincide with the epicenter of commercial activity or the seat of the business management, considered the seller’s place of business to be the construction site where the contract had been concluded and where, according to the parties’ intention, the equipment had to be collected by the buyer. Indeed, pursuant to Art. 10 (a) CISG, the construction site had the closest relationship to the contract and its performance. Therefore, the Court found that CISG was applicable according to its Art. 1(1)(a).
The Appellate Court moreover stated that the sellers were entitled to recover damages in the amount corresponding to the difference between the price originally stipulated and the price in the substitute transactions they had entered into with respect of the goods refused by the buyer. In reaching such a conclusion, the Court found that the cover sale had been made in a reasonable manner and within a reasonable time after termination of the contract.
The Court also came to the conclusion that, since the buyer had itself asked for the effects of the contract being terminated after that it had received a letter by the seller setting a deadline for collecting the goods and threatening an action for damages or termination of the contract in the case of non fulfillment by the buyer, no further notice of termination by the sellers was necessary in the case at hand.
.}}
Source
Original in German:
- available at the University of Pace law website, http://cisgw3.law.pace.edu
English Translation:
- available at the University of Pace law website, http://cisgw3.law.pace.edu}}