Oberster Gerichtshof, Urteil vom 14/03/2001 7 Ob 38/01s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0115071
Date: 2001-03-14
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0314(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff domiciled in Austria claims rights for payment subsequent to some deliveries to the defendant, a company seated in Germany as well as to its personally liable associate. The deliveries took place in the framework of a long and continuous business relationship, in which the plaintiff regularly sent some bills of delivery to the defendant as well as invoices with the note “payable and actionable in (…)”. The latter always accepted the papers without any objections and paid them without any comments. However it was regularly requested in all invoices that the transfer be made to an account in Munich (DE), and the defendant complied with this. The court of first instance (AT) considered itself incompetent, since in this case the length of the practice was too short for the establishment of a choice of forum agreement resulting from a usage, pursuant to Article 17(1)(b) Brussels Convention. However the court of appeal affirmed the choice of forum agreement since the defendant, in knowledge of the jurisdiction clause repetitively sent had made additional orders.
The OGH (AT) finds on the one hand that a choice of forum agreement through a commercial usage in the sense of Article 17(1)(c) Brussels Convention is neither affirmed nor detectable. However even by means of a usage according to Article 17(1)(b) Brussels Convention, such a choice of forum agreement has not been established, since a general agreement determining the forum is missing. The mere lack of reaction from the defendant to the papers regularly sent after the conclusion of the contract does not suffice to conclude for sure that the choice of forum agreement contained in it was accepted. This applies all the more as the plaintiff has respectively wished a modification of the place of payment and that this wish was also complied with. Thus one can doubt the seriousness of the adherence of the plaintiff to the pre-printed clause.