Oberster Gerichtshof, Urteil vom 09/09/2008 10 Ob 79/08b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2008:0100OB00079.08B.0909.000
Date: 2008-09-09
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82008AT0909(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a real estate broker. He brought an action before the Austrian court at the domicile of the first defendant seeking payment of broker's commission. With regard to the second defendant, domiciled in Germany, he based the jurisdiction of the Austrian court on Article 6(1) Brussels Convention. He justified his claim for commission by asserting that the second defendant had made an offer for a parcel of land, that the plaintiff had procured, directly to the owner of the parcel, which the latter accepted. The second defendant had indicated that he was also making the offer in the name of the first defendant and therefore communicated the latter's Austrian address. As thereafter, the defendants did not report back, the seller lastly withdrew from the agreement. However, his claim for commission had already accrued at that point. The second defendant challenged the jurisdiction of the Austrian court seised. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal for being inadmissible. Furthermore, it holds that the appellate court correctly determined the question of jurisdiction. The plaintiff's submissions do not disclose facts that would require a joint determination of the actions against both defendants in order to avoid the risk of irreconcilable judgments resulting from different courts. The plaintiff has failed to prove the alleged joint and several liability of both defendants for the alleged claim for commission by a demonstration of the circumstances. It can only be gathered from his submissions that the second defendant had made a binding purchase offer in his own name, while with regard to the first defendant he had merely indicated that the latter would also be interested in purchasing the parcel. However, this is not sufficient in order to prove that the prerequisites of Article 6(1) Brussels Convention were fulfilled.