Oberster Gerichtshof, Beschluß vom 28/10/1997 4 Ob 299/97t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1997:0040OB00299.97T.1028.000
Date: 1997-10-28
Subject matter: Lugano Convention
Origin: Austria

81997AT1028(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff manages a hotel in Austria. She seeks before an Austrian court from the defendant, domiciled in Germany, the payment of the rent for the accommodation of a private travel group for which the defendant had reserved rooms. The court of first instance considered itself incompetent on the ground that debts of money are obligations to be performed at the debtor’s place of business, in Germany. The court of appeal however focused on the nature and aim of the accommodation contract, for which the guest has also to perform his obligations at the place of accommodation, and declares its competence according to Article 5(1) Lugano Convention.
The OGH (AT) holds first that the place of performance according to Article 5(1) Lugano Convention shall be determined in accordance with the law which governs the obligation in question. According to the applicable Austrian law, in the absence of an agreement between the parties, the nature and aim of the business as well as the parties’ interests and the usages have to be taken into account to determine the place of performance. In the case of an accommodation contract with holiday visitors according to the usages, which in the absence of an agreement also result from the general conditions of the Austrian hotel contracts, and according to the interest of the hotel keeper, payment must be made by the guest at the place of accommodation. This also applies in German law. Where a voucher is handed over by the hotel guest, this embodies the counterperformance which is fulfilled at the place of accommodation even if the performance is achieved at a different place. The place of performance of the payment by the guest is therefore situated at the place of accommodation according to Article 5(1) Lugano Convention, which establishes the jurisdiction.