Germany 1 March 2010 Oberlandesgericht Koblenz (Asphalt mixing unit case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/100301g1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 2 U 816/09
CASE HISTORY: LG Köln, 11 January 2007, 83 O 238/05 ; OLG Köln, 21 June 2007, 12 U 16/07
SELLER'S COUNTRY: Great Britain
BUYER'S COUNTRY: Germany
GOODS INVOLVED: Asphalt mixing unit
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
14A [Basic Criterion - intention to be bound in case of acceptance]; 15A [Effective on reaching offeree]; 19A ; 19B [Reply purporting to accept but containing additions or modifications ; "Acceptance" with immaterial modifications]
14A [Basic Criterion - intention to be bound in case of acceptance];
15A [Effective on reaching offeree];
19A ; 19B [Reply purporting to accept but containing additions or modifications ; "Acceptance" with immaterial modifications]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (German): Global Sales Law database at <http://www.globalsaleslaw.com/content/api/cisg/urteile/2126.pdf>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Case text (English translation) [first draft]
Queen Mary Case Translation Programme
1 March 2010 [2 U 816/09] [*]
Translation by Ole Jensen
Addressing the problem of a reply purporting to be an acceptance and containing immaterial alterations to the technical requirements of an asphalt mixing unit.
[Seller] seeks payment of the outstanding balance of the purchase price from [Buyer] resulting from the delivery of an asphalt mixing unit contracted for in January 2006. The claim amounts to EUR 431.400, equaling 30% of the agreed purchase price. [Seller] argues that it – and not its French subsidiary B-France S.A.R.L. – had become party to the contract and that thus its standard terms and conditions, leading to the jurisdiction of the Court of First Instance, had become terms of the contract. Accordingly, it argues that the Court of First Instance was competent and the merits were governed by the CISG. It also purports that it has performed its obligations in conformity with the contract. [Buyer] contends that the party to the contract was not [Seller] but its French subsidiary B-France S.A.R.L. seated in France, on whose behalf witness A allegedly acted. [Buyer] asserts that [Seller]’s standard terms and conditions did not become part of the contract. Accordingly, it alleges that the contract was governed by material French private law. Only in case that [Seller] is, in fact, to be regarded as the contracting party, it acknowledges the applicability of the CISG. It asserts that the asphalt mixing unit was delivered too late and was neither in conformity with the contract nor with the applicable French regulations. Purportedly, it could therefore not be used for the agreed purpose. As a result of this delivery [Buyer] allegedly suffered damages in the amount stated in the additional counter-claim No. 1. It exercises its rights to retention and set-off. According to the expert opinion by expert M, which [Buyer] has obtained, the unit requires substantial modifications in order for it to meet the French regulations.
The Court of First Instance has declared the claim admissible in a preliminary ruling. The Regional Court of Appeal has indicated to [Buyer] that an appeal did not have any chances of success. Thereupon, [Buyer] withdrew its appeal.
Reasoning of the Court
Formally, [Buyer] criticizes that the facts of the case were arbitrarily incomplete. This objection does not hold up. According to sec. 313(2) ZPO, only the main content of a plea of law shall be briefly stated. In addition, [Buyer] did not file a motion to correct the facts.
The Court of First Instance correctly declared the claim admissible by way of an interim judgment (sec. 280, 303 ZPO). It is internationally, locally and materially competent to rule on the case. [Seller] and [Buyer] both became party to the contract. Its international and local competence results from the provision on the places of jurisdiction and performance in No. X 1 of the standard terms and conditions which are part of the contract.
The agreement on jurisdiction concluded between the parties is formally and materially valid in terms of Art. 5, 23 EuGVVO. Whether [Seller] or French B-France S.A.R.L. is party to the contract is a so-called double-relevant fact. It is relevant for both, the court’s jurisdiction and the merits of the claim. In this respect it is acknowledged that the court’s local competence is only subject to a limited examination that the pleadings, assuming the truth of the factual allegations made therein, establish all of the elements of a cause of action supporting the requested relief (cf.Zöller/Vollkommer, ZPO, 28th ed., sec. 12 § 14). The same goes for its international competence (Schlosser, EuGVVO, 3 rd ed. Art. 26 § 1). The agreement on jurisdiction was validly concluded. Art. 23 EuGVVO establishes the principle of party autonomy in regards to the choice of forum. The legal requirement of writing is fulfilled. A correspondence or a copy of the documents transmitted via fax suffices. A signature is not required. It suffices that the identities of the declaring persons are clear (BGH, NJW 2001, 1731; Zöller/Geimer, Art. 23 EuGVVO § 13). This form requirement is met by the presentation of term No. X 1 of the standard terms and conditions included in the offer of 07 January 2006.
Materially, the present dispute is governed by the CISG. Both parties agree on the applicability of the CISG should [Seller] have become party to the contract. Contrary to [Buyer]’s argument, French law does not apply because B-France S.A.R.L. is seated in France.
The Court of First Instance correctly assumed that [Seller] and not its French subsidiary B-France S.A.R.L. became party to the contract in January 2006. This is evidenced by the following circumstances: The written offer of 07 January 2006 was issued by German [Seller] and signed by witness A in his function as "Directeur B-France". It reads "B-GmbH & CO-KG M./Mosel …"
The offer included and expressly referred to [Seller]’s. [Buyer]’s legal representative initialed or signed every page of the offer and standard terms and conditions and sent them back to witness A. Furthermore, the written confirmation of order No. 107761 dated 25 January 2006 states [Buyer] as the issuer. Finally, the invoices of 07 July 2006 in the amount of EUR 1,438,000 net and of 01 August 2006 in the amount of EUR 359,500 net sent to [Buyer] state [Seller] as the issuer.
The Court of First Instance correctly states that the circumstantial evidence [Buyer] has provided does not offer sufficient proof that B-France S.A.R.L. became party to the contract. The fact that witness A left a business card with [Buyer] describing him as the "Directeur" of B -France S.A.R.L. is not of decisive importance. What is decisive is that the first offer of 07 January 2006 stated [Seller] as party to the contract. The offer meets the requirements of Art. 14 and 15 CISG. Contrary to [Buyer]’s allegations it effectively reached [Buyer]. In fact, [Buyer]’s legal representative, president and general manager T, took close note of the offer. He initialed every page and made clear which of the options he did not want. The second offer was made on 15 January 2006. [Buyer] again did not object to [Seller] being denoted as party to the contract but in fact made a partial payment upon arrival of the first invoice.
The fact that [Buyer]’s checks for the down payment, which were made out to "S.B.", were cashed by B-France S.A.R.L. does also not constitute a sufficient proof that B-France S.A.R.L. became party to the contract. B-France S.A.R.L. merely served as payee and French contact for the German parent company. The down payments were forwarded to the parent company.
Neither the fact that [Buyer] wrote the word "non" on pp. 19-21 of the offer and returned it to [Seller] nor B-France S.A.R.L.’s further involvement in the performance of the contract justifies a different conclusion. It is not a rejection of the offer in terms of Art. 19 CISG. According to Art. 19 CISG a reply to an offer which purports to be an acceptance but contains additions or other modifications (modified acceptance) is a rejection of the offer and constitutes a counteroffer. The modification in the current case is an immaterial alteration in terms of Art. 19(2) CISG which became part of the contract since [Seller] did not object to it. [Buyer]’s comment "non" only referred to the alternative to position 7.0 [Seller] offered in position 8.0 (Parc à liant mobile). [Buyer] rejected this alternative with its "non". However, this rejection of the alternative concerning the technical specifications of the mobile asphalt mixing unit does not influence the formation of the contract.
The letter of 24 March 2006 marked as [Buyer]’s Exhibit B 4 which was sent from B-France to T does not justify a different interpretation of the contract. This letter only concerns the date of delivery, information on noise pollution and other technical specifications.
[Buyer]’s arguments regarding the disclosed agency under French law and the evidence of the intent to act on behalf of another (similar to sec. 164(2) BGB)are irrelevant since it was apparent from the offer dated 07 January 2006 as well as the other circumstances that [Seller] would became party to the contract leading to the applicability of the CISG.
Apart from that, it is comprehensible how after the taking of evidence and hearing of witness A the Court of First Instance was convinced that the contract was concluded with [Seller] and not B-France S.A.R.L.
[Buyer]’s objection to the Court of First Instance’s evaluation of evidence is without merit, when it purports that the Court of First Instance had not sufficiently taken witness A’s business card, the addressee of the offer dated 11 January 2006 and the check into account or ignored it altogether.
Witness A has testified that to his knowledge [Seller] and not B-France S.A.R.L. had become party to the contract. He had met [Buyer]’s legal representative T for the first time on 06 January 2006 and had introduced [Seller]’s company to him using the documents he had with him. He has testified that he, A, has introduced [Seller] as the parent company and explained its connection to B-France S.A.R.L. Additionally he explained who worked for B-France S.A.R.L. and how the contract would be performed under its coordination and supervision. He had received the offer of 6 January 2006 on 9 January 2006 signed by [Buyer]’s legal representative. The final offer was dated around 15 January 2006. Although he had asked for an acknowledgment of receipt [Buyer] had not returned the signed final offer. However, within short time first payments of [Buyer] had arrived even before [Seller] had sent out any invoices. In any case, [Buyer] did not complain to him about [Seller]’s name being on the invoices once it received them. While he never discussed with [Buyer]’s legal representative whether [Seller] of B-France S.A.R.L. would become party to the contract, [Buyer]’s legal representative never stated that he would only be willing to contract with B-France S.A.R.L. [Buyer]’s down payments were made out to B-France S.A.R.L. from where it was wired on to [Seller]. A testified that he was authorized to act on [Seller]’s behalf.
* All translations should be verified by cross-checking against the original text. Translator’s note on the abbreviations: BGB = Bürgerliches Gesetzbuch [German Civil Code]; EuGVVO = Verordnung über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen [Regulation Brussels I on court jurisdiction (Regulation (EC) No. 44/01)]; ZPO = Zivilprozessordnung [German Code of Civil Procedure].Go to Case Table of Contents