Case number and/or case name
OLG Hamm, 6.12.2005 – 19 U 120/05
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 5
Paragraph 1
SubParagraph b
Indent 1
Paragraph 1
SubParagraph b
Indent 2
Article 23
Paragraph 1
SubParagraph a
Paragraph 1
SubParagraph b
Paragraph 1
SubParagraph c
Article 66
Paragraph 1
Paragraph 2
SubParagraph a
Paragraph 2
SubParagraph b
Date of the judgement
05 December 2005
CJEU's case law cited by the court
Summary
The parties argued about a claim resulting from a purchase contract. The plaintiff was domiciled in Germany. He had concluded a purchase contract with the defendant who was domiciled in France. The contract’s language was French. The contract also concluded an English passage that stated that the place of performance as well as the place of jurisdiction was Germany. The first instance court denied the international jurisdiction of German courts.
The court held that a jurisdiction clause in general terms and agreements doesn’t meet the formal requirements of Art. 23 (a) Brussels I if neither the general terms and conditions nor the clause itself was in the language of the main contract (here: French). Further, the court stated that Art. 5 no. 1 (b) Brussels I applied to any claims resulting from a purchase contract. In the present case the place of delivery was France. Therefore the court denied the international jurisdiction of German courts.
The judgment is correct. The interpretation of Art. 5 is in accordance with settled case law. Further, the negotiations on the contract had entirely been conducted in French. The fact that the general terms and conditions used by the plaintiff contained an English forum clause couldn’t be foreseen by the defendant.