Oberster Gerichtshof, Beschluß vom 27/01/1998 7 Ob 375/97s
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0109445
Date: 1998-01-27
Subject matter: Lugano Convention
Origin: Austria

81998AT0127(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs each purchased from the defendants, domiciled in Germany, half the shares of the defendant in an Austrian company which operated a discotheque in Innsbruck (AT). The notarial deed indicated a different purchase price than that agreed. In an undated, hand-written and signed document, which contained a jurisdiction clause in favour of the courts of Munich (DE), the parties had agreed on a significantly higher price, which the plaintiffs paid. The plaintiffs sought the annulment of the contract and brought an action for refund of the purchase price before the Landesgericht of Innsbruck (AT). They contended that they had been misled by the defendants at the conclusion of the contract. Contrary to claims by the defendant, the discotheque was not operable, as it required an official permit. The lower courts dismissed the action for lack of international jurisdiction. The plaintiffs appealed to the OGH (AT).
The OGH (AT) dismisses the appeal. It holds that the subject matter of the action is a claim for rescission based on annulment of the contract. The action does not relate to claims which substitute the contractual main obligations. Rather, the place of performance for these claims has to be determined independently. It is irrelevant whether German or Austrian law applies to the contractual relationship, as, according to both laws, the place of performance of the obligation to pay is situated at the seat of the debtor. Thus, the action cannot be brought in the forum provided by Article 5(1) Lugano Convention. The action does not fall under Article 5(3) Lugano Convention either. The claim for refund of the purchase price paid constitutes a claim based on unjust enrichment, which is not a claim in tort, delict or quasi-delict for the purpose of Article 5(3). As the Austrian courts lack jurisdiction, it is irrelevant whether the jurisdiction clause contained in the hand-written agreement is valid or not.