- SØ- & Handelsretten Domorg (Maritime and Commercial Court)
- Blohm + Voss Oil Tools GmbH v. C.C. Jensen A/S
RESERVATION UNDER ART. 92 CISG BY NORWAY (ART. 92(1) CISG)
INCORPORATION OF STANDARD TERMS - BATTLE OF FORMS (ART. 19) - LAST SHOT DOCTRINE
In 2009, a German company engaged a Danish company to replace the portholes of a historic yacht. As the portholes turned out to be defective, the seller sued the seller before the Danish Court.
Although the parties agreed that their argument about non conformity of the goods was to be resolved under Danish law, they disagreed on the issue of whether CISG applied. The seller alleged that its own law applied, claiming that in the offer originally submitted to the buyer, and on subsequent occasions, the reference was made to “ECE 188”, a standard form that designates “the law of the Vendor’s country” as the applicable law. The buyer insisted that in its reply to the offer the buyer’s standard terms had been referred to.
The Danish court ruled that CISG did not apply to the case at hand. In reaching this conclusion, the court emphasized that the seller, in its final invoice to the buyer, had referred to the seller’s final revised order, which included the buyer’s standard terms, without referring to its own standard terms as made on previous occasions. In applying the “last shot” theory, the Court did not clarify whether the decision was based on Danish law or the Convention.
Moreover, as to the merits, by applying Danish law, the court found for the seller, as the buyer failed to provide adequate evidence that the portholes were defective.
Original in Danish:
- available at http://domstol.fe1.tangora.com}}