Oberster Gerichtshof, Urteil vom 11/12/2002 7 Ob 256/02a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2002:RS0117296
Date: 2002-12-11
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82002AT1211(04)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendants domiciled in Germany were supposed to procure the Austrian plaintiff company in Turkey with business partners. In a meeting memo, the essential points of the negotiations on this matter were written down and signed by the parties. The memo also contained the note "the courts at Klagenfurt (AT) have jurisdiction". At the end of the memo, it was indicated that an elaborated contract still had to be created. The plaintiff paid off a loan mentioned in the paper and henceforth requests repayment from the defendants. While the Austrian court of first instance denied that the parties were bound, and denied jurisdiction, the appellate court accepted jurisdiction on the ground that the written form proviso does not change the mutual consent between the parties.
The OGH (AT) firstly holds that it only has to examine according to Article 17 (1) Brussels Convention whether the mutual consent regarding the forum is clear and precise. Further requirements for the assent between the parties follow from the national law applicable according to the conflict of law rules of the forum. Thus, according to Austrian law, it is relevant whether a draft agreement (Para. 885 Austrian Civil Code) exists, which already constitutes a directly binding framework agreement on the essential content. With a likewise conceivable preliminary agreement, in contrast, only a future conclusion of a contract is stipulated. The court states that although a formal document still has to be created, a valid draft of a contract already exists in the present case and thus, the jurisdiction agreement contained therein is valid.