The German plaintiff builds fire trucks. He brought an action for payment from a sales contract against the Spanish defendant who sells these trucks in Spain. The trucks were delivered by a forwarding company. The plaintiff’s general terms and conditions stated the international jurisdiction of German courts. In the acknowledgement of the orders the plaintiff used the term “ex works” while the defendant ordered the trucks by using the clause “F.O.C”. The Regional Court denied the international jurisdiction of German courts.
The Higher Regional Court denied the international jurisdiction of German courts under the scope of Brussels I. A prorogation of jurisdiction pursuant to Art. 23 (1) Brussels I required a written confirmation and a precedent oral agreement. If an order was made with the clause “F.O.C” and if its acknowledge was done under the term “ex works” there was no agreement saying that the place of performance is the place where the deliverer is based given the fact that he organizes the transport to the purchaser and that the paying for the transport’s costs has been handled differently during the business relationship.
In the present case there had been no clear agreement on the international jurisdiction. The order confirmations that were sent by the plaintiff can’t be considered as a mutual agreement. There always has to be a meeting of minds between the parties. This is required by the principle of legal security. Therefore the court decided correctly to not assume the international jurisdiction pursuant to Art. 23 (1) (a) second alternative Brussels I. Also, the plaintiff used the term “ex works” which usually means that the passing of the risk should take place when the goods leave the place of the deliverer. Staying silent in the light of the confirmations of the orders can’t be assumed as a consent to this clause (‘ex works’). The defendant used the clause “F.O.C” (=free of charge) which means that she didn’t want to pay for the costs of the transport. These two declarations do not contain an agreement on the question of the place of performance. The judgment therefore seems reasonable.