Oberster Gerichtshof, Urteil vom 14/12/2000 7 Ob 117/00g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2000:RS0114604
Date: 2000-12-14
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82000AT1214(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff seated in Austria claims the payment from the defendant domiciled in Germany on the basis of a delcredere liability which the defendant assumed for some companies which were bankrupt. The basis of this is the taking over of the contracts of the Vienna subsidiary (AT) of the defendant. In this regard, there is a draft agreement which provides for the jurisdiction of “Vienna”, which was however not signed by the defendant. The court of first instance (AT) has thus rejected its jurisdiction in the absence of a valid choice of forum agreement according to Article 17 (1) Brussels Convention whereas the court of appeal has considered that there was a possible oral choice of forum agreement.
The OGH (AT) finds on the one hand that the plaintiff has concretely invoked that the contract with the choice of forum agreement has been transferred to the defendant. The draft agreement could also contain a –unilateral – written confirmation of an oral choice of forum agreement. In this case, it does not depend on which party gave the approval. For this purpose, the court of first instance shall make further determinations.