EUPillar OLG München, 14.1.2009

Summary

The plaintiff brought an action for payment from delivery con-tracts. In the parties’ delivery relation the defendant continu-ously had made oral orders. The plaintiff had added written confirmations of these orders to his delivery. These confirma-tions also contained the plaintiff’s general terms and conditions which stated a certain place of performance within the meaning of Art. 5 Brussels I. The Regional Court denied the international jurisdiction of German courts: Firstly, it discussed whether there has been made a prorogation agreement pursuant to Art. 23 Brussels I. The court denied the presence of the requirements stated by Art. 23 and by the CISG concerning the validity of forum clauses. Secondly, the court denied the presence of an agreement on the place of performance within the meaning of Art. 5 Brussels I. The Higher Regional Court held that in case of an oral con-clusion of a contract an agreement on the place of perfor-mance within the meaning of Art. 5 Brussels I could evolve if one party hadn’t reacted to a letter of confirmation for com-mercial purposes (‘Kaufmännisches Bestätigungsschreiben’) containing general terms and conditions that state a place of performance and if this party had continued the contract by ordering further deliveries. The question concerning the agreement on the jurisdiction wasn’t relevant in that case. The jurisdiction of the Higher Regional Court is in accord with the CJEU jurisdiction in C-106/95 where the CJEU stated that ‘under a contract concluded orally in international trade or commerce, an agreement conferring jurisdiction will be deemed to have been validly concluded under that provision by virtue of the fact that one party to the contract did not react to a commercial letter of confirmation sent to it by the other party to the contract or repeatedly paid invoices without objec-tion where those documents contained a pre-printed reference to the courts having jurisdiction, provided that such conduct is consistent with a practice in force in the field of international trade or commerce in which the parties in question operate and the latter are aware or ought to have been aware of the practice in question’. In the present case the defendant knew that the plaintiff ran his business by using those general terms and conditions. Further, it was acceptable for him to examine the correspondence and take notice of the general terms and conditions’ content. Therefore, the decision is correct.