Germany 4 October 2002 Appellate Court Koblenz (Concrete slabs case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/021004g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 8 U 1909/01
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Belgium (defendant)
BUYER'S COUNTRY: Germany (plaintiff)
GOODS INVOLVED: Concrete slabs
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
19A ; 19B ; 19C ["Acceptance" with modification: reply purporting to accept but containing additions or modifications; "Acceptance" with immaterial modifications; Modifications that are material]; 31A [Place for delivery: contracts involving carriage of goods]
19A ; 19B ; 19C ["Acceptance" with modification: reply purporting to accept but containing additions or modifications; "Acceptance" with immaterial modifications; Modifications that are material];
31A [Place for delivery: contracts involving carriage of goods]
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CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=920&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (German): CISG-online.ch website <http://www.cisg-online.ch/cisg/urteile/716.htm>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=920&step=FullText>; see also Internationales Handelsrecht (2/2003) 66
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
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Queen Mary Case Translation Programme
4 October 2002 [8 U 1909/01]
Translation [*] by Kirsten Stadtländer [**]
Edited by Institut für ausländisches und Internationales
Privat- und Wirtshaftsrecht der Universität Heidelberg
Daniel Nagel, editor [***]
Plaintiff [Buyer], who operates a specialist business in steel and metal design, established a metal art studio in M... Germany in the summer of 1998. Defendant [Seller] has its seat in D... Belgium. Following an offer of [Seller] of 4 June 1999, an order of [Buyer] of 5 July 1999 and confirmation of the order by [Seller] on 7 July 1999, [Seller] delivered concrete slabs to [Buyer]'s building site. Although the clause "transport 9 DM per square metre" was mentioned in [Seller]'s offer and confirmation of the order, the [Buyer]'s order contained the clause "free on building site". The invoice of 18 August 1999 of Deutsche Mark [DM] 15,902 in total was calculated by [Seller] on the basis of its offer and confirmation of the order and was paid by [Buyer].
After the installation, [Buyer] recognized that the delivered concrete slabs did not provide the required insulation coefficient. The amount of DM 24,000 which is necessary for the correction of the defects is demanded by [Buyer]'s claim.
The District Court (Landgericht) Trier rejected the claim as inadmissible, holding that the court lacked international jurisdiction. The court held that the fact whether the general terms of [Seller] had been agreed on was irrelevant. According to Art. 5 No. 1 of the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 [Brussels Convention], international jurisdiction is determined by the place of performance. The place of performance had to be ascertained in accordance with the CISG. Under Art. 31(a) CISG, the obligation of the seller had been fulfilled by effecting the actual handing over to the first carrier. Therefore the place of business of [Seller] in Belgium was the place of performance. Under § 269(3) German Code of Civil Procedure, the same result would have been achieved by application of German law. A choice of forum according to Art. 17(1)(a), (b) or (c) of the Brussels Convention had not been made. The court held that international jurisdiction of the District Court of Trier was not established by Art. 2(1) Brussels Convention, nor was it established based on independent evidence proceedings (§ 486(2) No. 2 German Code of Civil Procedure).
[Buyer] lodges an appeal against this judgment and mainly demands reversal of the initial judgment and referral to the Court of First Instance.
REASONS FOR THE JUDGMENT
The appeal is admissible but not justified. The District Court correctly held that it lacked international jurisdiction.
Jurisdiction is not to be determined according to the standard terms of [Seller], as these have not been brought to [Buyer]'s notice and therefore have not become part of the contract. According to Art. 5 No. 1 Brussels Convention, which is to be applied here, the forum is to be ascertained by the place of performance of the obligation, i.e., in the present case the place where the concrete slabs were to be handed over to [Buyer]. In the absence of an express agreement of the parties, the handing over had to take place at the place of business of [Seller] in Belgium according to Art. 31(a) CISG.
An agreement on the place of performance has especially not been made by the clause "free on building site" used by [Buyer] in its order of 5 July 1999. This clause did not become part of the contract. In response to [Seller]'s offer of 4 June 1999, according to which transport was to cost DM 9 per square metre, [Buyer] ordered the wall elements by writing of 5 July 1999 adding the clause "conditions of delivery: calendar week 33 free on building site". This clause contained a change of [Seller]'s offer of 4 June 1999, as [Buyer] did not want to pay the transportation costs. The writing of [Buyer] therefore constitutes a counter-offer in the sense of Art. 19(1) CISG. The confirmation of the order by [Seller] of 7 July 1999 ... did not contain the clause "free on building site", but again listed the costs of transportation as DM 9 per square metre and DM 2,500 in total. As [Buyer] did not contest the confirmation and paid the invoice after the delivery, in which the costs of transportation were also calculated as DM 9 per square metre and DM 2,500 in total, the contract came into existence according to Art. 19(2) CISG containing the items of the confirmation and thus without the clause "free on building site". According to this provision, the response to an offer which is meant to be an acceptance, but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.
Even if it were possible to assume that the clause " free on building site" in the order of 5 July 1999 had become part of the contract, it could not be regarded as an agreement on a place of performance -- as the District Court correctly held -- but could at best constitute an agreement concerning the transportation costs and potentially an agreement in respect to the bearing of the risk. The clause only contains a change concerning the transportation costs demanded by [Seller] in its offer of 4 June 1999. There are no hints that the clause was also intended to determine the building site as the place of performance. In particular, there have not been any negotiations in this respect. The clause can therefore only be considered in conjunction with the transportation costs.
There is no need for a different legal assessment due to a decision of the Appellate Court (Oberlandesgericht) Köln of 8 January 1997 - 27 U 58/96. The clause "franco domicile" has been interpreted as a choice of the place of performance without further explanation there. However, this general interpretation cannot be followed, as the determination of the place of performance is not the only possible purpose of such a clause. In addition, it can also constitute an agreement on the transportation costs or the bearing of the risk. The interpretation of such a clause hence has to be undertaken with regard to the individual circumstances of each case. This can be deduced from the judgment of the Federal Supreme Court of Germany of 11 December 1996 - VIII ZR 154/95 (NJW 1997, 870).
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as [Buyer]; Defendant of Belgium is referred to as [Seller]. Amounts in the currency of Germany (Deutsche Mark) are indicated as [DM].
** Kirsten Stadtländer is a student of law at Humboldt University Berlin. She was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 2001/02 and a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.
*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.Go to Case Table of Contents