Germany 29 May 1995 District Court München (Computer hardware case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/950529g1.html]
Primary source(s) for case presentation: Case text
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 21 O 23363/94
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (plaintiff)
BUYER'S COUNTRY: Switzerland (defendant)
GOODS INVOLVED: Computer hardware
APPLICATION OF CISG: Yes
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Article
Classification of issues using UNCITRAL classification code numbers:
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=161&step=Abstract>
Italian: Diritto del Commercio Internazionale (1997) 739-740 No. 152
CITATIONS TO TEXT OF DECISION
Original language (German): cisg-online.ch <http://www.cisg-online.ch/cisg/urteile/235.htm>; Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1996, 266-268; Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts im Jahre (IPRspr) 1995 No. 146 [294-297]; Neue Juristische Wochenschrift (NJW) 1996, 401-402; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=161&step=FullText>
Translation (English): Text presented below
CITATIONS TO COMMENTS ON DECISION
English: Ferrari, International Legal Forum (4/1998) 138-255 [195 n.505 (definition of "goods"), 215 n.694 (implicit exclusion of CISG), 225 n.786 (scope of CISG: standard contract terms), 252 n.1074 (interest issues)]; Article 78 and rate of interest: Mazzotta, Endless disagreement among commentators, much less among courts (2004) [citing this case and 275 other court and arbitral rulings];  Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 6 para. 18 Art. 57 para. 11aGo to Case Table of Contents
Queen Mary Case Translation Programme
29 May 1995 [21 O 23363/94]
Translation [*] by Thomas Arntz [**]
By action, received by the District Court on 14 December 1994, the Plaintiff [Seller] (from Germany) sought from the Defendant [Buyer], seated in Switzerland, payment of the purchase price for the delivery of computer-hardware.
[Seller] submits the following argument:
[Seller] has had an ongoing business relationship with [Buyer] since March 1994. The parties agreed that [Seller] only delivers under its general terms and conditions. Pursuant to Art. 20 of its terms and conditions, the contractual relationships are only subject to German law; the application of the CISG is excluded. The exclusive venue for all contract related claims is agreed to be Munich. Moreover, there are notes on the respective order acknowledgments of [Seller] declaring that the place of performance and the exclusive jurisdiction is to be Munich.
An employee of [Buyer] placed the following orders:
The computer parts were delivered to [Buyer]; [Buyer] however, did not make any payments. The check of a customer of [Buyer] -- the main purchaser of the delivery of goods -- was stopped. After repeated reminders, [Seller] set [Buyer] a time limit for payment until 30 September 1994. [Seller] draws on credits, for which it has to pay interest of 12.5%, at least in the amount claimed.
[Seller] requests the court to render a default judgment pursuant to § 331(3) ZPO [*] and to hold that:
[Buyer] was not represented by an attorney.
GROUNDS FOR THE DECISION
Since [Buyer] did not advise of its willingness to defend itself through an accredited lawyer within the time limit of four weeks since service on 8 March 1995, as stipulated in the order of 16 December 1994, the claim was to be decided by default judgment pursuant to § 331(3) ZPO:
I. The [Seller]'s action is admissible. The District Court of Munich has jurisdiction (Art. 5 No. 1 Lugano Convention [*]; § 29(1) ZPO [*]).
The jurisdiction of the court does not result from the alleged choice of forum agreement by way of inclusion of [Seller]'s general terms and conditions.
Despite [Buyer]'s default, [Seller]'s assertions concerning this issue are not considered as conceded pursuant to § 331(1) ZPO.
[Seller] did not prove the existence of a choice of forum agreement meeting the requirements of Arts. 17, 53 Lugano Convention.
1. The Lugano Convention has been in force between the Federal Republic of Germany and Switzerland since 1 March 1995 (BGBl [*] 1995 II p. 221; cf. Zöller-Geimer, ZPO, 19. ed., Art. 1 EuGVÜ [*] para. 2). The domestic provisions (here § 38 ZPO) do not apply within the scope of the EuGVÜ.
Since the writ was served on [Buyer] after the Lugano Convention entered into force, the jurisdiction has to be determined in accordance with this convention (compare Wieczorek/Schütze/Hausmann, ZPO, 3. ed., Inroduction to the Lugano Convention (Einl. Luganer Übereinkommen) para. 22, p. 960 -- concerning the relation to the EuGVÜ, Art. 54 b (2)(a) Lugano Convention).
Pursuant to Art. 54(1) Lugano Convention, its provisions are only applicable to legal proceedings instituted after its entry into force in the State of origin and, where recognition or enforcement of a judgment is sought, in the State addressed. The convention is silent as to when the proceedings are considered to be instituted (Wagner, ZIP 1994, 81, 82). With recourse to the corresponding provision of the EuGVÜ, Art. 54 EuGVÜ, concerning which voices in literature and jurisprudence opine that the relevant point in time is when the writ is served (compare Kropholler, European Law on Civil Procedure (Europäisches Zivilprozeßrecht), 4. ed., Art. 54 GVÜ), the tribunal considers this to be also the decisive point in time concerning the Lugano Convention. Pursuant to case law of the EuGH [*] (Judgment of 13 November 1979 -- Rs C25/79, RIW 1980, 285 -- Sanicentral GmbH/Collin), choice of forum agreements concluded before the EuGVÜ entered into force are -- concerning proceedings initiated after this point in time -- to be considered as valid, even if they would be void pursuant to the domestic provisions applicable at that time, because the EuGH considers choice of forum agreements to be an option only taking effect when the suit is brought. Thus, it cannot be assumed that choice of forum agreements concluded in accordance with domestic law before the EuGVÜ and the Lugano Convention respectively entered into force, remain valid concerning proceedings initiated after that time.
A restriction of Art. 54 by reasons of protection of confidence is not to be accepted (compare Zöller-Geimer, Art. 2 EuGVÜ para. 17; MünchKommZPO/Gottwald, Art. 54 EuGVÜ para. 3 fn. 3; Art. 17 para. 13; Schack, International Law on Civil Procedure (Internationales Zivilverfahrensrecht), para. 465; Hausmann supra, Art. 17 EuGVÜ para. 11; Kropholler, Art. 17 para. 10; other opinion Stein-Jonas-Bork, ZPO, 21. ed., § 38 paras. 25, 20). Additionally, in the case at hand there is no need for such a protection because in spring and summer 1994 the parties could have prepared themselves for the entry into force of the Lugano Convention between Germany and Switzerland (compare Kropholler supra; for Switzerland the Lugano Convention is in force since 1 January 1992; Hausmann supra Lugano Convention (Luganer Übereinkommen) para. 3, p. 954). Thus, it is irrelevant whether the choice of forum agreement would have had to be measured on Art. 17 EuGVÜ regarding the seat of [Seller] in Germany (compare Hausmann supra, Art. 17 EuGVÜ para. 5).
2. A choice of forum agreement in the sense of Art. 17 Lugano Convention requires a clear and distinct agreement between the parties. The form requirements are meant to ensure that there is mutual consent by the parties (EuGH NJW 1977, 494 -- Colzani/RÜWA). These requirements are only met, if the agreement is either in writing or with subsequent written acknowledgment from one party in a form which accords with practices which the parties have established between themselves or, in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware (compare Lindacher in: Wolf/Horn/Lindacher, AGBG [*], 3. ed., § 2 para. 111 et seq.). It is sufficient if there is a reference to standard terms and conditions in the form of Art. 17 Lugano Convention (EuGH supra, p. 495; BGH NJW 1994, 2699).
None of these alternatives is fulfilled:
a. There is no written agreement (Art. 17(l) 2 a 1. alt.) which includes the standard terms of [Seller].
b. There is also no agreement meeting the form requirements of Art. 17(1) 2 a 2. alt. Lugano Convention. This requirement is only fulfilled, if the parties have orally concluded a contract, in which they agree upon a forum and that this agreement was evidenced in writing by one party (BGH supra, p. 2700; NJW 1986, 2196). Concerning this agreement it is sufficient that the parties have agreed upon the applicability of standard terms which include a choice of forum clause, if these terms are available to the other party at the time of conclusion of the contract (BGH supra p. 2700; Hausmann supra, Art. 17 EuGVÜ para. 39 et seq.). Such an agreement also exists if the parties -- who regularly do business with each other -- orally conclude a contract and if the business relationship is subject to the gerneral terms and conditions which include a choice of forum agreement. (EuGH supra p. 495; BGH supra p. 2700).
On the basis of [Seller]'s submission, it is not clear whether the parties orally concluded a contract during their telephone conversation or not. But that may be as it is, as [Seller] did not assert that it informed [Buyer] of its standard terms or the choice of forum clause during the telephonic orders or that [Buyer] accepted them (compare EuGH RIW 1985, 737; Lindacher supra, § 2 para. 102; Hausmann supra, Art. 17 EuGVO para. 40).
Furthermore, [Seller] did not give conclusive arguments that the parties' previous business dealings included the application of [Seller]'s general terms and conditions. [Seller] neither showed to which extent the parties transacted business before the orders, nor that its general terms and conditions were included in these contracts (compare OLG Bremen TranspR 1995, 32, 33; Hausmann supra, Art. 17 EuGVtJ para. 41).
c. There was also no agreement "in a form which accords with practices which the parties have established between themselves" (Art. 17(1) sentence 2 b Lugano Convention -- this form requirement is not only fulfilled if it is in writing, but also if it is in any other form which accords with practices which the parties have established between themselves (compare Hausmann supra, Art. 17 EuGVÜ para. 48)), as the existence of such a practice before the conclusion of the contracts cannot be ascertained (compare above under b).
d. The fourth alternative of Art. 17 ((1) 2 c) is also not fulfilled. The general terms and conditions of [Seller] were not incorporated into the contract by [Buyer]'s silence upon [Seller]'s order acknowledgments. Standard terms and conditions can be incorporated into a contract by transmitting an acknowledgment referring to them, if the receiving party accepts delivery without objections and thus gives its assent to their application (compare BGHZ 61, 282, 287; NJW 1994, 2699, 2700; LG Rottweil NJW-RR 1992, 688; Schmidt, in: Ulmer/Brandner/Hensen, AGBG, 7. ed., § 2 para. 33; compare further Lindacher supra, para. 109; KG NJW-RR 1994, 1265; OLG Köln NJW-RR 1994, 1431). However, in the case at hand, the fact that the goods concerning the acknowledgments of 16 March, 12 August and 5 September 1994 were already delivered to a third party (presumably customers of [Buyer]) before the acknowledgments were sent, has to be taken into consideration. Thus, there was no uncontradicted acceptance of delivery by [Buyer].
Furthermore, [Seller] did not assert that -- pursuant to the lex fori of [Buyer] -- silence upon an acknowledgment is considered as an acceptance of the standard terms and conditions referred to therein.
3. The District Court of Munich has jurisdiction pursuant to Art. 5(1) Lugano Convention, § 29(1) ZPO.
a. The agreement upon a place of performance (§ 29(2) ZPO) is not subject to the form requirements of Art. 17 Lugano Convention (compare EuGH NJW 1980, 1218; Zöller-Geimer supra, Art. 5 para. 10) but to the law applicable according to the principles of international private law (EuGH NJW 1977, 991; BGH NJW 1988, 1466; OLG Bremen TranspR 1995, 32, 33).
The question of whether [Seller]'s general terms and conditions -- without consideration of the choice of forum agreement -- were validly included into the contract or not, has to be decided in accordance with German Law. In default of a choice of law, the law of the State where the seller has its seat is applicable pursuant to Art. 28(1) 2, (2) 1 and 2 EGBGB [*], as it is the seller who has to perform the characteristic obligation of a sales contract (Palandt-Heldrich, Art. 28 EGBGB para. 8). The general provisions of the AGBGB [*] concerning the requirements for the inclusion of standard terms do not only apply to domestic contracts, but also to contracts with a connection to an international facts pattern (compare Palandt-Heinrichs, § 2 AGBG para. 31).
The requirements of Art. 2 AGBGB do not apply to merchant dealings (§ 24 No. 1 AGBG; the merchant status (Kaufmannseigenschaft) of [Buyer] can be derived from its legal form). However, in principle the requirement of an inclusion by act of the parties is also applicable to merchant dealings (compare Ulmer/Brandner/Hensen, AGBG, 7. ed., § 2 para. 80 fn. 198). The party using the standard terms has to refer to them in a distinguishable manner at the time of conclusion of the contract and the other party has to act in a way from which its assent can be derived. The reference to the standard terms has to be made during the contract negotiations. A reference on documents, sent to the other party after conclusion of the contract, is not sufficient (Palandt-Heinrichs, § 2 para. 24).
The question of whether a valid agreement as to the place of performance pursuant to Art. 17 Lugano Convention has been concluded does, however, not need to be decided.
b. If [Seller]'s standard terms and conditions were not included into the contract, the District Court Munich still does have jurisdiction pursuant to Art. 5 No. 1 Lugano Convention; Art. 1(1)(a), Art. 57(1)(a) CISG; § 29(1) ZPO, because in this case the clause including the disclaimer concerning the CISG (Art. 20 of [Seller]'s general terms and conditions) would not be valid and there are no indications of an exclusion of the CISG. In Germany, the CISG has been in force since 1 January 1991 and in Switzerland, since 1 March 1991 (compare v. Caemmerer/Schlechtriem, CISG, 2. ed., appendix I p. 801 and before Artt. 1 -- 6 para. 17). Pursuant to Art. 57(1)(a) CISG, in default of an agreement as to the place of payment the buyer has to pay the price to the seller at the seller's place of business, which is in the area of competence of the District Court of Munich (compare EuGH [*], judgment of 29 June 1994 -- Rs.C-288/92, report 20/94 p. 5 et seq. = RIW 1994, 676).
II. The [Seller]'s claim is justified.
1. The assertions of [Seller] which are considered as conceded pursuant to § 331(1) ZPO justify the claim (§ 433 para. 2 BGB [*] and Art. 53 CISG respectively).
The parties concluded four sale contracts for the goods and in the amount stated above. The goods were delivered to [Buyer] and its customers respectively.
2. [Seller]'s claim for interest is justified due to [Buyer]'s default (§ 284 Abs. 1 sentence 1, § 286 Abs. 1 BGB [*] and Art. 74 CISG respectively). [Seller] stated to have reminded [Buyer] on 30 September 1994. Art. 78 CISG does not exclude the claim for default interest. Rather, a higher damage due to the availment of bank credits can be claimed as compensation (OLG Frankfurt NJW 1994, 1014, 1015; Eberstein/Bacher, in: v. Caemmerer/Schlechtriem, Art. 78 para. 34; Piltz, International Sales Law (Internationales Kaufrecht), § 5 para. 288).
III. The decision on costs is rendered pursuant to § 91 ZPO [*]; the decision concerning the provisional enforceability is rendered pursuant to § 708(1) ZPO.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Germany is referred to as [Seller] and Defendant of Switzerland is referred to as [Buyer]. Amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM].
Translator's note on other abbreviations: AGBGB = Gesetz zur Regelung des Rechts der Allgemeinen Geschaftsbedingungen [German Code on Unfair Contract Terms]; BGB = Bürgerliches Gesetzbuch [German Civil Code]; BGBl = Bundesgesetzblatt [the German Federal Law Gazette]; EGBGB = Einführungsgesetzbuch zum Bürgerlichen Gesetzbuche [German Code on Private International Law]; EuGH = European Court of Justice; EuGVÜ = Europäisches Gerichtsstands- und Vollstreckungsübereinkommen, 1968 [European Convention on Jurisdiction and Enforcement of Judgments on Civil and Commercial Matters]; Lugano Convention = Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, adopted at Lugano on 16 September 1988; ZPO = Zivilprozessordnung [German Code on Civil Procedure].
** Thomas Arntz is a law student at the University of Cologne. During 2003-2004 he spent a year in Clermont-Ferrand, France, as an Erasmus student. In 2004/2005 he participated in the Twelfth Willem C. Vis Moot.Go to Case Table of Contents