Oberster Gerichtshof, Urteil vom 26/04/2005 # 4 Nc 12/05k
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2005:0040NC00012.05K.0426.000
Date: 2005-04-26
Based on: Provisional data
Subject matter: Lugano Convention
Origin: Austria

82005AT0426(06)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Austrian claimant received a letter from a Swiss mail order company personally addressed to him. This letter gave the impression that the claimant had won an amount of money in excess of €5,500, which he simply had to claim. However, the company did not pay out the promised prize on request. The claimant then applied to the Austrian courts, by submitting a draft claim, for a designation of the Austrian court having jurisdiction.
The OGH (AT) holds, based on the decision of the ECJ in a similar case (C-27/02), that the present case does not concern a consumer contract within the meaning of Article 13 et seq. Lugano Convention, but a contractual dispute within the meaning of Article 5(1) Lugano Convention. The subject matter of the action is the request for payment of a prize promised to the plaintiff. In the absence of an express or coherent agreement regarding place of performance, the claim is to be judged under Article 4(2) Rome Convention, which determines the applicable law on contractual obligations according to the law of the State in which the performer of the contractual obligation has his domicile or seat at the conclusion of the contract. With unilaterally obligatory contracts, the performance of the unilaterally obligated party (the donor) is the main obligation. The place of performance in the present case must therefore be determined according to Swiss law. This determines that monetary debts are to be paid where the creditor is domiciled at the time of conclusion of the contract. The place of performance is situated in Austria, the domicile of the plaintiff. Thus, the Austrian courts are competent according to Article 5(1) Lugano Convention.