- I-23 U 70/03
- Oberlandesgericht Düsseldorf
JURISDICTION - 1968 BRUSSELS CONVENTION - AS FROM 1 MARCH 2002 REPLACED BY EUROPEAN COUNCIL REGULATION (44/2001) ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGEMENTS IN CIVIL AND COMMERCIAL MATTERS
JURISDICTION - EUROPEAN COUNCIL REGULATION NO. 44/2001 - AUTONOMOUS DEFINITION OF PLACE OF PERFORMANCE - PREVAILING OVER ART. 57(1)(A) CISG
INCORPORATION OF STANDARD TERMS IN CONTRACT – TO BE DETERMINED ACCORDING TO GENERAL RULES ON CONTRACT FORMATION OF CISG (ARTS. 14, 18 CISG) AND ON CONTRACT INTERPRETATION (ART. 8 CISG)
A Dutch buyer placed an order with a German seller for generators, engines and the like, to be used with sand pumps. The seller confirmed the order by letters. The seller's standard terms were printed on the back of the letters of confirmation. Yet on the front of the letters there was only a term concerning delivery and the passing of risk and a reference to the seller's address. According to the seller's standard terms the Court of Düsseldorf, Germany, had jurisdiction over any dispute arising between the parties. Later on, the seller provided the buyer with technicians who were to install the machines delivered. After the occurrence of some accidents while the machines were in operation, the seller's technicians were called again. As the buyer refused to pay a part of the price for the substitute machines and the technicians' work, the seller brought an action against the buyer.
The First Instance Court ruled that the contract fell within the scope of CISG (Art. 3(1) CISG). Furthermore, in an interim judgement, the Court affirmed its jurisdiction to hear the case, not pursuant to the seller´s standard terms, but on the basis of Art. 5(1) of the 1968 Brussels Convention and Art. 57(1)(a) CISG. The Appellate Court reversed the lower court's decision.
The Appellate Court denied having jurisdiction to hear the case. In reaching this conclusion, it found that Art. 57(1)(a) CISG was not relevant to the case at hand because, as of March 2002, the 1968 Brussels Convention was no longer applicable. In fact, under the new European Council Regulation (no. 44/2001) on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, that has replaced the 1968 Brussels Convention, the decisive factor is only the place where the characteristic performance has to made (Art. 5, nr. 1). The European Regulation no. 44/2001 contains an autonomous definition of the place of performance which, as lex specialis, prevails over Art. 57(1)(a) CISG.
Nor could the jurisdiction of the Appellate Court have been based on the seller´s standard terms, as the parties had not made a valid agreement with respect to jurisdiction. In reaching this conclusion, the Court held inter alia that even if this question were not expressly solved by the European Council Regulation no. 44/2001 (Art. 23), pursuant to Arts. 14 and 18 CISG as well as Art. 8(2)(3) CISG the addressee of an offer must have the possibility of knowing the standard terms without unreasonable inconvenience, i.e. it must be clear to the addressee that the offeror wants to include its standard terms in the contract. This condition had not been met in the case at hand.
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Original in German to be found at the University of Basel website, http://www.cisg-online.ch}}
Published in German:
- available at the University of Basel website, http://www.cisg-online.ch}}