Data
- Date:
- 12-02-2025
- Country:
- Austria
- Number:
- 33 R 142/24f
- Court:
- Oberlandesgericht Wien
- Parties:
- --
Keywords
SCOPE OF CISG - MATTERS EXCLUDED (ART. 4 CISG) - SET-OFF WITH A CLAIM NOT GOVERNED BY CISG - GOVERNED BY DOMESTIC LAW
SCOPE OF CISG - MATTERS EXCLUDED (ART. 4 CISG) - SET-OFF WITH TWO CLAIMS STEMMING FROM SEPARATE CONTRACTS - GOVERNED BY DOMESTIC LAW EVEN IF CISG IS APPLICABLE
Abstract
[Draft abstract prepared by David Klingbacher, Sapienza University of Rome - Paris Lodron University of Salzburg]
A Swiss buyer (plaintiff) purchased two “white” diamonds from an Austrian company (second defendant), represented by the first defendant in his capacity as Managing Director. The plaintiff paid deposits for both diamonds. The transaction provided that the remaining purchase price for each diamond would be due only upon the delivery of original certificates issued by the first defendant, confirming that the diamonds were of Type II-A quality. The plaintiff subsequently resold both diamonds. As the first defendant failed to provide the required Type II-A certificates, the plaintiff and his buyer arranged for the diamonds to be professionally examined. The examination revealed that the stones had been artificially treated and were of significantly lower value than represented. Subsequently, the first defendant took the diamonds back and assured compensation for the damage, which however was never provided. The plaintiff then entered into a further agreement with the first defendant concerning another diamond, with payment subject to a gemological examination confirming its authenticity. The plaintiff had the diamond examined, which revealed that it was not genuine. The plaintiff stated that he was willing to hand it over to the first and second defendants once the factual and legal situation regarding the first two transactions had been clarified.
The Court of First Instance upheld the plaintiff’s claims. With regard to the second defendant, it held that the contract was governed by CISG pursuant to its Art. 1(1)(a) CISG. The sale of the artificially treated diamonds constituted a breach of contract. The deposits were therefore recoverable as damages, while the failed resales were qualified as loss of profit under Art. 74 CISG.
Moreover, the defendants argued, inter alia, contributory negligence on the part of the plaintiff and sought to set off the plaintiff’s claims due to the retention of the third diamond. However, the court rejected the contributory negligence defense, finding that the first defendant’s intentional and fraudulent conduct outweighed any possible negligence by the plaintiff. Accordingly, a reduction of damages under Art. 77 CISG was not admissible.
Finally, the Court of First Instance rejected the first defendant’s set-off argument for lack of mutuality of claims and It also dismissed the second defendant’s set-off defence, finding that no claim existed against the plaintiff, who was merely retaining the diamond pending clarification of the relevant facts and legal issues.
The two defendants appealed the judgment, arguing inter alia that the Court of First Instance had wrongly assessed the set-off issues.
The Court of Appeal held that the law applicable to the set-off between the second defendant and the plaintiff had to be determined under the private international law rules of the forum, as the alleged counterclaim was not governed by CISG. In doing so, it confirmed that set-off falls outside the CISG where at least one of the claims is not governed by the Convention, and likewise where the claims arise from separate contracts, even if both are subject to CISG.
The applicable law was therefore Austrian domestic law, which does not permit set-off where the subject matter of the claim derives from deceit or fraud.
In conclusion, the Court of Appeal upheld the decision of the Court of First Instance, finding no error of law and dismissing the remaining grounds of appeal.
Fulltext
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Source
Original in Austrian:
- available at www.cisg-online.org}}