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| A German seller and a Swiss buyer concluded several contracts for the sale of computer hardware. Upon concluding the contracts, the seller referred to its standard terms which contained, inter alia, a clause designating the place of payment and a clause which expressly excluded the application of CISG and specified German law as the governing law of the contract. After delivery of the goods the buyer did not pay the purchase price. The seller commenced an action claiming payment of the price plus interest.
The Court applied Art. 5(1) of the Lugano Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (Lugano 1988), which states that a person domiciled in a Contracting State (in the case at hand: the buyer) may be sued in the Court for the place of performance of the obligation in question (in the case at hand: payment of price). The Court held that the question concerning the incorporation of the seller's standard terms into the contract had to be determined, irrespective of the choice of law clause therein contained, according to the law applicable by virtue of the international private law rules of the forum which in the case at hand led to the application of German law. The Court, however, left open the question whether the standard terms of the seller had become part of the contract, as in any case the price had to be paid within its sphere of jurisdiction (in compliance either with the standard terms or with Art. 57(1)(a) CISG). |