PIL instrument(s)

Case number and/or case name

OLG Hamm, 20.9.2005 – 19 U 40/05

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

19 September 2005

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about payment claims regarding a delivery contract. The contract contained a jurisdiction agreement that was included in the general terms and conditions in English. The agreement stated the jurisdiction of German courts and the applicability of German law. The court had to examine the validity of the jurisdiction clause. The court held that it was sufficient that the party being confronted with general terms and conditions signed the conditions. It wasn’t required that the text was written in a language the counterparty could understand. Further, the forum prorogatum was sufficiently determined even given the case that the plaintiff was granted a choice between two different venues within one Member State. It is not entirely clear who is obliged to bear the risk of a misunderstanding of general terms and conditions if they are written in a language that is foreign to one of the parties. In the present case the contract negotiations had been made in English. Therefore it seems appropriate to assume a legally valid inclusion of English terms and conditions. In this case it can be expected from the party being confronted with the general terms and conditions that he is able to assure their understanding. It seems acceptable to assume a sufficiently determined venue if the plaintiff was allowed to choose between two courts named in the agreement. It wouldn’t however have been a sufficiently specified prorogation if the plaintiff had been granted a completely free choice. The judgment is correct.