Date: 24.07.2009
Country: Germany
Number: 13 W 48/09
Court: Oberlandesgericht Celle
Parties: --
An Austrian buyer ordered electronic equipment from a German manufacturer of software and hardware products for a purchase price of 14.961,00 Euro. The seller confirmed the order in a message sent by fax which contained a note stating that the seller’s standard terms as set out in the form on the seller’s website and displayed in its seller’s business facilities would apply to the contract. The seller’s standard terms provided for the exclusive application of German law and the jurisdiction of German courts. After the buyer had made an advance payment of 2.244,15 Euro, the seller delivered the goods. The buyer refused to pay the remainder of the purchase price and the seller brought an action against it before the German courts. The buyer asked the seller’s claim to be dismissed on the ground of lack of jurisdiction, contending that the seller’s standard terms had not become part of the contract. Following the buyer's payment of the outstanding price, the parties declared the dispute settled and each asked the other to be charged with the cost of the legal proceedings.

The first instance Court stated that each party had to bear its own costs and expenses as the seller had not proven that jurisdiction was vested in the German courts. The seller appealed submitting that its failure to provide evidence on jurisdiction was due to the buyer's failure to contest that a proper venue had been validly chosen by the parties as a result of the incorporation of the seller's standard terms in the contract.

The Appellate Court rejected the seller's claim. In doing so, it noted that, in order for a forum selection clause to be validly stipulated, Art. 23, lit. (a) of Council Regulation (EC) no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter: the Regulation) requires both parties to express their consent clearly and unambiguosly. The mere reference to the seller’s standard terms without their being attached to the document, together with the note that those terms and conditions were available at the seller’s place of business and on its website, could not be held sufficient to conclude that the buyer had consented to the jurisdiction of the German Courts under the Regulation.

Furthermore, the Court stated that the result would have been the same even if the law governing the contract had been applied. In reaching such a conclusion, the Court held CISG applicable to the merits of the dispute, since the law to be applied in order to assess whether, in the case at hand, a choice-of-law clause had been validly stipulated, was that of a Contracting State (i.e. Germany) (Art. 1(1)(b) CISG). It followed that the issue as to whether the seller’s standard terms had been incorporated into the contract had to be resolved in accordance with CISG's provisions on contract formation (Arts. 14 and 18 CISG). According to Art. 8 CISG, the recipient of a proposal supposedly based on standard terms and conditions must have the possibility of becoming aware of such terms in a reasonable manner. To this effect, CISG requires the user of standard terms to trasmit the text of such standard terms or to make them available to the other party in another way. In fact, there would be a violation of the principle of good faith in international trade (Art. 7 CISG) and the parties’ general duty of cooperation and information if the recipient of standard terms and conditions was obliged to make enquires about their content and to bear the risk and disadvantage of unknown standard terms introduced by the other party.

Finally, the Court excluded that the parties had validly agreed upon a forum selection clause according to an established practice between themselves (Art. 23, lit.(b), Regulation), or in a form which accords with an internationally acknowledged usage in trade or commerce (Art. 23, lit. (c), Regulation). Nor could the competence of the German Courts be justified pursuant to Art. 5, 1(b), subsection 1 of the Regulation since, although the seller's place of business had been indicated in the seller's standard terms as the place of performance, those terms had not become part of the contract.