Oberster Gerichtshof, Beschluß vom 29/03/2004 5 Ob 313/03w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2004:0050OB00313.03W.0329.000
Date: 2004-03-29
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82004AT0329(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Austria, was assigned by the defendant, domiciled in Italy, to supply a custom made plant for it. After rescission due to non-acceptance by the defendant, the plaintiff claimed damages for services which were partially provided but which were not paid, at the place of performance of the obligation to pay according to the CISG. The court of first instance declared itself incompetent, because the primary obligation, for which damages were sought, was the acceptance of the plant at the place of business of the defendant in Italy. This decision was confirmed by the appellate court, since the payment of the remuneration as primary obligation had likewise to take place at the seat of the defendant, according to the applicable Austrian substantive law.
The OGH (AT) holds that regarding secondary contractual claims, as for instance payment of damages, the place of performance according to Article 5(1) Brussels Convention must be determined on the basis of the primary obligation which was infringed. Since the present contract, as contract for labour and material, is indisputably subject to the CISG, Article 57(1)(a) CISG has to be applied to the defendant’s obligation to pay. As the orderer’s obligation to pay is to be regarded as the primary obligation on which non-compliance the claim for damages is based, the place of performance is at the seat of the seller, in this case the plaintiff. Furthermore, this jurisdiction based on uniform law, is to be applied not only to the purchase price payment, but also to other pecuniary claims, as here to payment of damages, which are to be likewise fulfilled at the seat of the respective creditor.