The claimant, a car distributor of Nissan, claimed the supplier to take back the spare parts for the price charged by Nissan at the time of delivery. Nissan has terminated the contract under the contractual notice period of two years.
According to the distribution contract the claimant was obliged to keep an adequate stock. In case of termination Nissan was contractually obliged to take back only those spare parts which were delivered in the last 12 months and which were originally packed.
The Supreme Court (Case 6 Ob 254/06f of March 16, 2007) considered this restricting clause, under art 879 par 3 Austrian Civil Code, as invalid concerning spare parts which the claimant had to keep in stock under the contract. Insofar the restriction was unfair. The supplier is able to use those spare parts in his organization, the distributor is only able to organize a sale. The time restriction to one year old spare parts is in no way justified (but, the Supreme Court does not say if and to what extent a time restriction is justified).
The first instance has to clarify in the further proceedings, if there is a contributory fault of the distributor holding a stock which had been probably too large. On the one hand, the notice period for the termination has been two years, thus the dealer had enough time to reduce the stock. On the other hand the claimant wanted to be accepted as an authorised workshop, which might be the reason why the claimant (still) had such a stock at the time of the termination.
Gustav Breiter, IDI country expert for Austria.
