Oberster Gerichtshof, Beschluß vom 12/11/1998 2 Ob 304/98i Z. / A. und L.
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1998:RS0111191
Date: 1998-11-12
Subject matter: Lugano Convention
Origin: Austria

81998AT1112(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, domiciled in Austria, lodged i.a. a claim against the defendant, domiciled in Italy, before the Landesgericht of Leoben (AT) as a result of an outstanding purchase money debt, payment on which the defendant had guaranteed. The claimant based international jurisdiction on Article 5(1) Lugano Convention because the place of performance of the purchase money debt lay at the claimant’s seat and the defendant’s obligation was to be performed at the same place. Judgment in default was given against the defendant. On appeal by the defendant, the appeal court overturned this judgment and dismissed the claim citing lack of international jurisdiction. The claimant lodged an appeal before the OGH (AT).
The OGH finds the appeal is without merit. International jurisdiction here does not arise under Article 18 Lugano Convention. It is true that in its notice of appeal the defendant first raised the exception of pending proceedings and only subsequently raised objection to the court’s lack of international jurisdiction. However, the order is irrelevant as the claimant primarily filed an application for the determination of the first instance court’s lack of jurisdiction and only raised the other claim as an alternative. Furthermore, jurisdiction does not arise from Article 5(1) Lugano Convention. The obligation to be taken into consideration is that which constitutes the subject matter of the claim, whereupon the place of performance of this obligation is to be determined according to the lex causae. Because guarantees are legal acts that are dependent on the main debt, the substantive law to be applied to them is that which applies to the main debt. Here, Austrian substantive law applies, which determines the place of performance of the guarantee separately from the place of performance of the main debt. According to Austrian law, the place of performance is in Italy, and Austrian courts do not have international jurisdiction.