Oberster Gerichtshof, Beschluß vom 14/07/1999 7 Ob 176/98b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0112313
Date: 1999-07-14
Subject matter: Lugano Convention
Origin: Austria

81999AT0714(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian plaintiff bought shoes from the defendant company, having its seat in Italy. It commenced proceedings before the Landesgericht of Salzburg (AT) having jurisdiction over its seat seeking damages for breach of contract. The plaintiff asserted that the jurisdiction of that court had been stipulated by way of a jurisdiction agreement. It had ordered the goods from the defendant using order forms which contained an indication on the front side that the order was made subject to the terms and conditions printed on the back side. The orders as well as their acceptance by the defendant were signed by the latter. The defendant challenged the international jurisdiction of the court. It alleged that it had never accepted a jurisdiction agreement. It offered evidence in order to prove that it had only confirmed the date of delivery by signature, however, not the complete agreement. The court of first instance dismissed the challenge to jurisdiction. The appellate court overruled the decision on the ground that the court of first instance had failed to exhaust the offered evidence. The plaintiff appealed to the OGH (AT).
The OGH (AT) dismisses the appeal and affirms the appellate judgment. It holds that a jurisdiction agreement can also be concluded by reference to terms and conditions used by one of the parties, in which a jurisdiction clause is contained, in a form conforming to Article 17 Lugano Convention. This also applies in cases where the terms and conditions are drafted in another language than the language agreed on provided that the reference to them is written in the language of the contract. The defendant's assertion that it only confirmed the delivery date is hardly probable. However, the appellate court's holding that a exhaustion of the offered evidence was required is not objectionable.