- HA ZA 08-1624
- Rechtbank Utrecht
INTERPRETATION OF CISG - RECOURSE TO FOREIGN CASE LAW (ART. 7(1) CISG)
INCORPORATION OF STANDARD TERMS - TO BE DECIDED ACCORDING TO CISG PROVISIONS ON CONTRACT FORMATION AND INTERPRETATION (14, 18 & 8 CISG)
INCORPORATION OF STANDARD TERMS - INEFFECTIVE UNLESS THEY WERE HANDED OVER TO THE OTHER PARTY BEFORE OR AT THE TIME OF CONTRACT CONCLUSION
A Dutch seller and a German buyer concluded orally two contracts for the sale of sesame seeds in October 2007. For each contract, the seller sent the buyer an order confirmation that included a reference to its standard terms. When the buyer took legal action against the seller, the latter objected to the jurisdiction of the Dutch Courts, invoking an arbitration clause contained in its standard terms.
The Court dismissed the seller’s claim, as it found that the standard terms (including the arbitration clause) had never become part of the contracts of sale concluded between the parties.
The Court first noted that CISG governed the contracts between the parties pursuant to its Art. 1(1)(a). It followed that the issue as to whether the standard terms had become part of the contracts had to be judged on the basis of CISG's provisions on contract formation and interpretation (Arts. 14, 18 and 8 CISG).
With respect to the merits, the Court held that the application of the standard terms to the contracts could not be derived from a customary course of business between the parties, because no such course existed at the moment of contracting in October 2007.
Furthermore, the Court found it irrelevant that - as contended by the seller - German suppliers usually refer to general conditions in their contracts with sellers at domestic level, since the contracts at issue were of an international nature and the seller did not sufficiently prove the use of general conditions to be customary also in international trade.
Moreover, the Court held that a simple reference to the seller's standard terms was insufficient to make them binding on the buyer. To this end, the seller should have given the buyer a reasonable opportunity to know their content, either by handing over them to the buyer before or at the time of contract conclusion or by mentioning the relevant provisions (more specifically the arbitration clause) during negotiations. But this was not the case here.
In conclusion, after referring to the German case law concerning the incorporation of standard terms under CISG and holding that such terms only apply if made available to the other party before the conclusion of the contract (Art. 7(1) CISG), the Court ruled that the arbitration clause was ineffective vis-à-vis the buyer.
Original in Dutch:
- available at the Netherlands case law website, http://www.rechtspraak.nl
- available at the Pace Law University website, http://cisgw3.law.pace.edu/cases/090121n1.html}}