Brandenburgisches Oberlandesgericht; 2016-06-09; 5 U 60/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2016:0609.5U60.14.0A
Date: 2016-06-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0609(51)_ENG_SUMJURE
JURE summary
JURE summary
The case decided by the Brandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) concerns a donation agreement and the jurisdiction regarding a claim for the re-transfer of a co-ownership share of a plot of land and a residence of the recipient in Spain.
The plaintiff sought the re-transfer of a one-third co-ownership of land located in G with a chateaux and adjacent buildings built on it. The plaintiff donated this real estate via a notary transfer agreement of 10 May 2011 to the defendant as co-owner of one third and her brother, S.Z., as a co-owner of two-thirds. The plaintiff revoked the donation claiming gross ingratitude.
As a reason, the plaintiff stated that the defendant was guilty of serious misconduct towards her due to their failure to participate at the renovation works conducted on the real estate. Referring to the provision of Article 3(2)(g) of the donation agreement, the plaintiff sought the return of the real estate through a notary certified letter of 20 February 2014, which the defendant received personally on 6 March 2014.
Article 3(2)(g) of the donation agreement provides that a right to claim the return of the real estate, as described in Article 3(1) of the agreement, applies among the parties in the event of ‘the chateaux registered in the land register of G is not ready to be moved into by 31 December 2013’. According to the plaintiff, all parties agreed that the respective co-ownership share should remain with the donees only if the chateaux had been fully renovated including the attic extension and was ready to move into. The defendant challenged this statement claiming that the attic extension was not part of the renovation works under the donation agreement.
The Landgericht Frankfurt (hereinafter ‘the Court of First Instance’) dismissed the action as inadmissible. The plaintiff filed a justified appeal with the Court of Appeal against this decision.
The subject-matter of the action is claims arising out of a contract. Article 5(1)(a) of the Brussels I Regulation (1) stipulates that for contracts not concerning the sale of goods or provision of services, the court having jurisdiction is the court for the place of performance of the obligation in question. Under Article 5(1)(a) of the Brussels I Regulation, the defendant can be sued in a German court despite residing in Spain as the obligation which is the subject-matter of the proceedings was to be fulfilled in Germany.
The Court of Appeal decided that the plaintiff was not entitled to a re-transfer of the defendant’s co-ownership share to the real estate under Article 3(1) of the donation agreement of 10 May 2011, citing that the contractual preconditions regarding the re-transfer of the assigned right have not been met. It was not obvious from the wording of the agreement that the attic extension was part of the planned renovation.
The Court of Appeal dismissed the appeal of the plaintiff against the decision of the Court of First Instance.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.