Oberster Gerichtshof, Urteil vom 14/12/2004 1 Ob 94/04m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:RS0119733
Date: 2004-12-14
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82004AT1214(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff requested, before an Austrian court, payment of the purchase price for delivery of goods from the defendant, having its seat in Italy. The plaintiff regularly issued invoices, which contained the delivery clause "place of performance and forum Wels". In response to three purchase offers, the plaintiff sent order confirmations which indicated that place of performance. The plaintiff based the jurisdiction of the Austrian courts on the agreement regarding the place of performance, according to which it handed over the goods to a carrier in Wels (AT) in accordance with Article 5(1)(b) Brussels I Regulation and Article 31 CISG. The defendant invoked Italy as the place of performance as the goods were to be delivered there.
The OGH (AT) holds that a contractual agreement on the place of performance, based on the delivery clause contained in the invoices, had not been reached. Indeed, the agreement on the place of performance may in principle arise from the Incoterms (delivery clauses). However, these clauses are not to be regarded as customary law or trade usage. The mere insertion of a place of performance clause in an invoice does not fulfil the requirements of Article 14 CISG and is therefore not sufficient for the formation of an agreement on the place of performance, where such clause has not been expressly or impliedly accepted by the addressee of the invoice. Also, the three order confirmations of the plaintiff do not constitute regular usage, as several orders occurred without such an order confirmation. In the present case, an implied acceptance of the contractual changes by the defendant, and the resulting inclusion of the Incoterms in the contract, cannot be assumed. Thus, the plaintiff did not enter into a valid place of performance agreement, and therefore Article 5(1)(b) Brussels I Regulation applies, according to which the place of performance was the destination in Italy.