- 7 HKO 155/00
- Landgericht Trier
JURISDICTION - 1968 BRUSSELS CONVENTION - PLACE OF PAYMENT OF PURCHASE PRICE (ART. 57(1) CISG)- ACCORDING TO PRACTICES BETWEEN THE PARTIES
A German seller and a Dutch buyer entered into a long-term business relationship in which they regularly concluded contracts concerning the sale of equipment for telecommunications. The seller usually debited the purchase price directly at the buyer's bank in the Netherlands. As some invoices, in which the parties had not expressly agreed on the manner or place of payment, remained unpaid the seller commenced legal actions before a German Court. The buyer objected to the jurisdiction of the German Court and argued for a dismissal of the case.
The Court declined its jurisdiction. According to Art. 5(1) of the EC Convention on Jurisdiction and the Enforcement of Decisions in Civil and Commercial Matters [1968 Brussels Convention], a person domiciled in a contracting state may be sued in the Court of the place of performance of the obligation in question. As CISG was applicable to the contract (Art. 1(1)(a) CISG) the place of payment was governed by Art. 57(1) CISG, which states that in the absence of a contrary agreement the place of payment is at seller's place of business (Art. 57(1)(a) CISG).
Taking into account, however, the parties' ordinary course of business, the Court held that the parties had implicitly agreed on a specific manner of payment, which consisted in the seller direct debiting of buyer's bank account in the Netherlands. By this agreement the parties had established a practice between them under which the place of payment was at the buyer's bank in the Netherlands (Art. 57(1) CISG).
To be scanned.}}
Published in: Internationales Handelsrecht 1/2001, p. 35}}