Oberster Gerichtshof, Urteil vom 16/12/2003 4 Ob 147/03a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0118364
Date: 2003-12-16
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82003AT1216(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, having its seat in Austria, ordered vendor parts from the defendant, having its seat in Italy, by telephone. By way of fax, the plaintiff added the method of shipping "free domicile" and demanded delivery "in the house [of the plaintiff]" during specific times of stock receipt. These requirements were accepted by the defendant, i.e. he let them go unchallenged. Accordingly, the goods were delivered at the seat of the plaintiff. The plaintiff brought an action for damages in Austria due to defects of the goods. While the Austrian court of first instance accepted jurisdiction, the appellate court declined jurisdiction on the ground that the delivery clauses only referred to the allocation of costs and did not determine a place of performance.
The OGH (AT) holds that in case that the parties did not agree on a place of performance because the stipulated delivery clauses only referred to the allocation of costs, the place of performance has to be determined according to Article 5(1) (b) Brussels I Regulation. Thereby reference has to be primarily made to factual criteria. As the defendant delivered the goods to the plaintiff, as agreed by the parties, the plaintiff's seat was the "place ...where, under the contract, the goods were delivered" for the purpose of Article 5(1) (b). Thus, the place of delivery constitutes the place of performance laid down in law and thus, establishes jurisdiction at the seat of the plaintiff.