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Germany 21 December 2005 Appellate Court Köln (Trade usage case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/051221g1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20051221 (21 December 2005)


TRIBUNAL: OLG Köln [OLG = Oberlandesgericht = Appellate Court]

JUDGE(S): Unavailable


CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Spain (defendant)


Case headnote

Reproduced from Internationales Handelsrecht [2/2006] 86

"An agreement regarding the place of performance does not exist when the parties only confirm the statutory place of performance."

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Classification of issues present



Key CISG provisions at issue: Articles 7 ; 9 ; 57(1)(a)

Classification of issues using UNCITRAL classification code numbers:

7A33 [Application of good faith standards];

9B ; 9C [Implied agreement on international usages; Practices established by the parties];

57A [Place for payment: in absence of agreement, payment at seller's place of business]

Descriptors: Jurisdiction ; Good faith ; Usages and practices ; Standard terms and conditions ; Payment, place of

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Editorial remarks

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Citations to case abstracts, texts, and commentaries


(a) UNCITRAL abstract: Unavailable

(b) Other abstracts



Original language (German): Internationales Handelsrecht [2/2006] 86-87

Translation (English): Text presented below



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Case text (English translation)

Queen Mary Case Translation Programme

Appellate Court (Oberlandesgericht) Köln

21 December 2005 [16 U 47/05]

Translation [*] by Stefan Dietrich [**]

Edited by Camilla Baasch Andersen [***]


[Translators comments: The decision does not give detailed information on the parties. From the context it can be surmised that the litigation concerns the legal matter of a Spanish buyer and a German seller]


Court order (Beschluss) of the 16th Civil Division of the Appellate Court of Köln (Cologne) of 21 December 2005:

I.   On [Seller]'s claim of 6 October 2005, [Seller] is granted restitutio in integrum, on her account, in regard to the delay in filing her brief on appeal, based on [Seller's sufficiently plausible submission.

II.  This court, neveretheless dismisses [Seller]'s appeal against the decision of the District Court of Köln of 16 June 2005 (30 O 237/04) pursuant to 522(2) ZPO (ZPO = German Civil Procedure Order).

And, as the present legal matter has no significant bearing, and as a decision by judgment is also not necessary to develop a legal issue or to secure a uniform jurisprudence (comp. 522(2) No. 2 and 3 ZPO), the appeal will be decided on by way of court order.

The District Court properly dismissed [Seller]'s claim, because the court does not have international jurisdiction. [Seller]'s objections to this, brought forward with the appeal, have not been substantiated.

In this present case, international jurisdiction is defined according to Council Regulation (EC) No. 44/2001 of December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial matters (EuGVVO. This regulation applies despite the contract having been already concluded in 2000/2001, pursuant to Art. 60(1), 66(1), 76 sentence 1 EuGVVO, because the action was filed and served after this regulation entered into force on 1 March 2002.

      1. The international jurisdiction of German Courts does not follow from an agreement on jurisdiction pursuant to Art. 23 EuGVVO. And such an agreement has not been effectovely agreed upon between the parties.

            a. As far as an agreement on jurisdiction according to Art. 23(1) 3 a EuGVVO is concerned, this court -- in order to avoid unnecessary repetition -- refers to the correct remarks by the District Court, which [Seller] also did not challenge in this appeal.

            b. The District Court also properly assumed that [Seller] did not adequately demonstrate the existence of a trade usage (Art. 23(1) c EuGVVO). Although the form requirements for this application are relaxed as compared to other alternatives, an effective agreement of German jurisdiction according to this provision, nevertheless, requires the mutual consent of the parties. Thos may, however, be presumed if the other mentioned requisites of the provision are in order (Geimer/Schütze/Auer, Int. Rechtsverkehr, Art. 23 EuGVVO Rn. 94).

In commercial relations, it may suffice if the other party knew or ought to have known that the contractual partner will only make a deal according to his terms and conditions, if and as far as these are commonly known terms in the particular trade. Then, an only in such cases, do the terms and conditions not have to be present at the acceptance. The [Seller] has not substatiated that such commonly known terms and condition existed. [Seller] does not refer to standard terms of a trade, but simply her own terms and conditions. Thus, in regard to these, the general inclusion requisites do apply; pursuant to the jurisprudence of the BGH (BGH = Bundesgerichtshof = Federal Court of Justice) on the inclusion of terms and conditions in the CISG (BGH NJW 2002, 370, 372), the jurisdiction agreement would have to be part of the contract, or otherwise made accessible to the contracting party.

Similarly, the jurisdiction of the District Court of Köln's cannot be based on an international usage in trade, as alleged by [Seller].

   -    First, this would require, that it is not only common among German businesses, but also in other countries, to use terms and conditions in international contracts, which contain a jurisdiction clause on international jurisdiction. This is not alleged by [Seller]; her submission expressly only alludes to German businesses.
   -    But above all, a trade usage cannot beconstitutedthrough the contents of termsand conditions which were noteffectively included in the contract. It contradicts the principle of good faith in international trade (Art. 7(1) CISG) as well as the general duty to cooperate and the duty to comminucate with business parties, to impose an obligation to inquire in regard to a clause that is not disclosed to the contractual partner, and to saddle him with the risks and disadvantages of unknown adverse terms and conditions (BGH l.c.). That which contradicts the principle of good faith can never be considered to be a usage in trade.

      2. In addition, the international competence of German courts cannot be derived from the special jurisdiction of the place of performance pursuant to Art. 5 No. 1 b EuGVVO. According to this provision, a person domiciled in a Member State can be sued in another Member State,namely, when a contract or claim arising out of a contract forms the subject of the proceedings before the court of the place where the obligation was fulfilled or should have been fulfilled.According to section b) of Art. 5 No. 1 EuGVVO, the place of performance of the obligation for the sale of movable goods is, in terms of this provision, and provided that nothing else was agreed,the place in a Member State where, under the contract, the goods were delivered or should have been delivered.

In the present case, both the agreed place of performance and the actual place of delivery are located, contrary to [Seller]'s opinion, not in Germany, but at the place of the intended building in Spain. After the delivery was carried out, the actual place of delivery is authoritative, i.e., the place of the handing over of the goods to the buyer, and is independent of who organized the transport and paid for it. The place of performance of the obligation to deliver is the place where the buyer gained the physical control of the goods (Geimer/Schütze/Auer, Art. 5 EuGVVO Rn. 64; MünchKommZPO/ Gottwald, 2nd edit. (2002) Art. 5 EuGVVO Rn. 5; Geimer/Schütze, EuZVR, Art. 5 EuGVVO Rn. 86; Kropholler, Art. 5 Rn. 40; Hau, IPRax 2000, 354, 358).

The place of performance, which establishes the jurisdiction, corresponds to the place of destination. Contrary to [Seller]'s opinion, other systematic considerations do not contradict this, particularly not the relationship to Art. 15 et seq. EuGVVO. These only concern the sale of movable goods on part payment and provide, in respect of consumer court obligations ("Gerichtspflichtigkeit"), for an exclusive jurisdiction. According to the common view, nothing contrary can be derived from the formulation of the provision referred to by [Seller] ("Place of performance is the place at which the delivery has to be performed").

Thus, an international jurisdiction of German Courts can only be considered in the case under consideration if another place was effectively arranged as the place of performance. That this did not result from the inclusion of [Seller]'s terms and conditions, is evidenced above. However, [Seller] also alleges that the parties implicitly agreed upon another place of performance because at the time of the conclusion of the contract, they correspondingly emanated from the applicability of the CISG - here: Art. 57(1) a CISG. But from the CISG, it would result that the agreed payment has to be effected at the seller's place of business; thus this place would be the authoritative place of performance. This is unfounded,because the agreement on the place of performance, which deviates from the otherwise appplicable legal rules, requires not only a deliberate choice of law in favor of the CISG, but also in regard to such a place of performance. Such a choice of law is not existent, because the parties merely implicitly applied the CISG (because they did not waive it).

However, no deviation from the otherwise applicable law through a private act of volition can be seen therein, and thus no agreement. There is no agreement on the place of performance at hand, when the legal place of performance is only confirmed; but only when it should be modified.

The provision of Art. 57(1)(a) CISG is, contrary to [Seller]'s opinion, not within the scope of Art. 5 EuGVVO if the contract was concluded before the entry into force of the EuGVVO. This also applies if one acts on the assumption that the parties did not want to modify the legal place of performance with their agreement on the place of performance, but only meant an agreement conferring jurisdiction. Because then, a "case of misusage" is at hand: As an "agreement", which only refers to the legal provisions and which does not touch on the legal place of delivery, it is actually a matter of a pure agreement conferring jurisdicton pursuant to Art. 23 EuGVVO, which in turn must conform to the form requirements (District Court of Trier, decision of 8 January 2004 - 7 HK.O 134/03 - IHR 2004, 115, 116; Geimer/Schütze, European Civil Procedure Law Art. 5 EuGVVO Rn. 47 to 49).

Such an abstract agreement conferring the place of performance would be void in regard to form for the above-mentioned reasons. Moreover, it cannot be assumed that [Seller], using his terms and conditions, on the one hand expressly determines the - according to his opinion superflous - choice of German Law inclusive of the CISG, while on the other hand, renouncing an express agreement on the place of performance and insofar relied on an implied agreement on something which - as a matter of course - did not have to be regulated.

Moreover, the actual place of delivery, which has to be considered in accordance with Art. 5 No. 1 b EuGVVO, is not in Germany. The principle of the place of performance of the characteristic obligation is applied (OLG decision of 14 March 2005 - 16 U 89/04 - RIW 2005, 778, 779; Geimer/Schütze, EuZVR, Art. 5 EuGVVO Rn. 85).

If the normative element is included in the determination of the place of performance in Art. 5 No. 1 b EuGVVO, which emphasizes delivery "under the contract" (cf. thereto Eltzschig, IPRax 2002, 491, 495; Kropholler, Art. 5 EuGVVO Rn. 40), then the place of delivery is also Bilbao. Because [Seller]'s offer expressly determines in the text that the depot arrangementwill be transported to Bilbao and installed there and that the cost of the transport and the installation will be covered by [Seller]. The question of whether the taking over of the transportation costs by [Seller] is to be understood solely as a debt to be discharged at creditor's domicile (comp. OLG, decision of 16 July 2001 -16 U 22/01 - OLG Report 2002, 37), can be left unanswered. Because, if it is intended in the contract, then it follows that the seller has to install the product at the domicile of buyer - this is thus an implicit agreement that the place of delivery is at buyer's domicile (OLG München RIW 2000, 712, 713; OLG Celle IPRax 1985, 284, 288; Staudinger/Magnus, CISG (2005), Art. 31 EuGVVO Rn. 33; Honsell, UN-KaufR (1997), Art. 31 EuGVVO Rn. 44; Magnus, ZEuP 2002, 523, 534). Moreover, the contract contains an agreement for a purchase inter absentes (Fernkauf) which is a debt to be discharged at creditor's domicile (cf. thereto OLG Celle IPRax 1985, 284, 287). According to [Seller]'s offer, she was obliged to install the depot arrangement in Bilbao; from which it follows that [Seller] could only fulfill her contractual obligations vis-à-vis [Buyer] as recently as in Bilbao, as the place of the final inspection.


* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of Germany is referred to as [Seller] and the Defendant of Spain is referred to as [Buyer].

** Stefan Dietrich, Dipl. iur University of Bochum, LL.M. University of London (2004/2005). His fields of law are International Commercial Law and Corporate Law. Since January 2006, articled clerk with the Higher Regional Court (OLG) Hamm.

*** Camilla Baasch Andersen, Lecturer in International Commercial Law, University of Leicester, Fellow of the Institute of International Commercial Law, Pace, Visiting Lecturer at University of London.

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Pace Law School Institute of International Commercial Law - Last updated September 11, 2007
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