Date: 31.10.2001
Country: Germany
Number: VIII ZR 60/01
Court: Bundesgerichtshof
Parties: Unknown
A Spanish buyer and a German seller concluded a contract for the sale of a used milling machine, including an obligation of the seller to install the machine on the buyer’s premises. The seller's standard terms contained an exemption from liability for any defects in used machinery. Though the seller made a general reference to its standard terms in the confirmation of order, it did not include a copy of the terms. The installation of the milling machine turned out to be very troublesome and took far longer than expected. Since the seller's fitter failed to set up the machine and an electronics specialist was needed to complete the installation at the buyer’s expense, the buyer commenced an action claiming the costs of the installation. The seller refused to pay invoking the exemption clause contained in its standard terms.

The Supreme Court confirmed the lower Court’s decision in so far as it found that the seller's liability for non-conformity of the goods had not been effectively excluded, and remanded the case to the lower Court in order to ascertain the existence of a defect in the machine.

The Court found that the inclusion of standard terms in the contract is governed by CISG general rules on contract formation and contract interpretation (Arts. 8, 14, 18 CISG) and not by the otherwise applicable domestic law.

In the Court's opinion, standard terms referred to in the offer are binding on the offeree only where the standard terms have been attached to the offer or the offeree was otherwise in a position to know of their contents. It follows from the general principle of good faith in international trade (Art. 7(1) CISG) and the parties' duty to cooperate and to give information deriving therefrom, that in an international sales contract the user of standard terms has to make sure that the other party is in a position to know their content.