Oberster Gerichtshof, Beschluß vom 09/09/1997 4 Ob 233/97m
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1997:RS0108473
Date: 1997-09-09
Subject matter: Lugano Convention
Origin: Austria

81997AT0909(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, domiciled in Germany, requested before an Austrian court, the consent of the defendant, also domiciled in Germany, to the payout of a guarantee given by a bank having its seat in Austria. The rights concerning the guarantee were assigned to the plaintiff by the defendant in the course of a business participation. The court of first instance did not consider itself competent, as well as the court of appeal, since according to the courts the matter did not relate to the place of performance of the obligation to pay the bank guarantee according to Article 5(1) Lugano Convention.
The OGH (AT) holds first that on the basis of Article 5(1), only the obligation which forms the basis of the claim matters. However, here it is not the claim for payment of the amount of the guarantee that is brought against the bank, which is not a party to the proceedings. It is rather the claim for consent to the payout of the amount, which the defendant owes on the basis of a contract of assignment. Thus, the place of performance concerning this declaration of consent is determined according to the law applicable to the contract of assignment. The applicable Austrian law presumes – as German law – in case of doubt, that the place of performance is at the domicile of the debtor. Although, the defendant has to give his consent to the bank having its seat in Austria, he does not have to travel to its seat. Thus, the Austrian courts lack jurisdiction due to the inapplicability of Article 5(1) Lugano Convention.