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| A German buyer ordered from a Belgian seller concrete slates produced by the latter. While the original offer of the seller contained the clause “Transport costs 9 DM per km”, the buyer’s order contained the clause “frei Baustelle” (Free carrier named place). The seller’s confirmation of order included again the clause “Transport costs 9 DM per km”, After delivery of the goods to Germany the buyer paid the invoices. Thereafter it brought an action against the seller before a German Court alleging that the goods were defective and claimed damages for lack of conformity. The First Instance Court in Germany held that it lacked jurisdiction to hear the case.
The appellate Court upheld the decision of the lower Court on this point. It applied Art. 5(1) of the EC Convention on Jurisdiction and the Enforcement of Decisions in Civil and Commercial Matters (1968 Brussels Convention), according to which a person domiciled in a Contracting State may be sued in the Court of the place of performance of the main obligation in question. Pursuant to Art. 31 (a) CISG, when the sale involves transportation of the goods and in the absence of a different agreement of the parties, the obligation of the seller consists in handing the goods over to the first carrier. In the case at hand the goods had to be handed over at seller’s place of business, which was in Belgium. The Court further held that the buyer’s order containing the clause “frei Baustelle” was to be considered a counter-offer according to Art. 19(1) CISG, because it contained a modification of the seller’s original offer. In its turn, the seller's confirmation of order was an acceptance of the buyer's counter-offer, but as it contained the clause “Transport costs 9 DM per km” again, it modified the buyer's order and constituted a counter-offer. Since, however, the buyer had not objected to the modifications contained in the seller's confirmation of order - which in the view of the Court did not materially alter the terms of the offer - but paid the requested amount (including transportation costs), the Court held that the contract had been validly concluded as modified by the seller's confirmation of offer (Art. 19(2) CISG). In an obiter the Court observed that even if the clause "frei Baustelle" had become part of the contract, it would not automatically mean that the question of the place of performance determining jurisdiction were solved by it. Such a question has to be solved looking at the circumstances of each case, and in the case at hand the clause represented only a provision on the distribution of transportation costs. |