OLG Koblenz; 2020-10-08; 6 U 1582/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGKOBL:2020:1008.6U1582.19.00
Date: 2020-10-08
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82020DE1008(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter the ‘plaintiff’) filed an action against a company domiciled in Switzerland (hereinafter ‘defendant 1’), which was offering the purchase of trees in Brazil as an investment opportunity to clients in Germany, and the member of the administrative board and managing director of the defendant (hereinafter ‘defendant 2’) seeking the payment of the purchase price the plaintiff paid under the respective purchase agreement.
The plaintiff and defendant 1 concluded the purchase agreement regarding ownership of growing teak trees which were intended for a later sale (hereinafter the ‘purchase agreement for trees’). In order to prove the transfer of ownership, defendant 1 sent to the plaintiff the respective ownership certificate.
The plaintiff challenged the validity of the purchase agreement for trees stating that the ownership to the trees not only had not but also could not have been transferred effectively. Defendant 1 refused to accept the withdrawal from the agreement.
The Landgericht Mainz (hereinafter ‘the Court of First Instance’) which held the international jurisdiction under Article 15(1)(c) and Article 16(1)(second alternative) of the new Lugano Convention (1) found the action admissible but not justified, and dismissed it. Defendant 1 did not deceive the plaintiff as he indeed became the legitimate owner of the trees. The purchase agreement for trees was subject to Brazilian law and under Brazilian law, it was possible to acquire ownership of the trees without acquiring ownership to the land. Accordingly, the purchase agreement for trees was conforming to the law.
The appeal lodged by the plaintiff with the Oberlandesgericht Koblenz (hereinafter ‘the Court of Appeal’) was not successful.
Pursuant to Article 43(1) EGBG (2), such things are subject to the laws of the country where they are located.
From the statements included in the expert opinion commissioned by the Court of First Instance, which neither party contested, followed that ownership had been transferred effectively under Brazilian laws. Teak trees are movable things which can be attached to land naturally or artificially but are destined to be separated from the land. Ownership to movable things can be transferred by concluding an agreement. An obligation to conclude such agreements in the form of a notary deed did not exist. Contrary to the opinion of the plaintiff, no registration in a public register was necessary.
The Court of Appeal dismissed the appeal of the plaintiff against the decision of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).