Case number: 175
Article number: sales convention / 9(2); 35
Thessaurs issue:
Country of decision: Austria
Year of decision: 1995
Type of decision: Judicial decision

Case 175: CISG 9(2); 35

Austria: Court of Appeal Graz; 6 R 194/95
9 November 1995
Original in German
Unpublished



The plaintiff, an Italian seller, sold marble slabs labelled "Giallo Veneziano" to the Austrian defendant. The defendant alleged that the marble slabs delivered did not conform to the contract and refused to pay the purchase price (article 35 CISG).



In remanding the case to the court of first instance, the Court of Appeal held that article 9(2) CISG, save a limited number of exceptions, could not be interpreted as barring the application of national or local usage in interpreting a contract even though no mention of such usage was made in the contract itself. Accordingly, a seller who has been engaging in business in a country for many years and has repeatedly concluded contracts of the type involved in the particular trade concerned is obliged to take national usage into consideration.