- 12 U 153/12
- Oberlandesgericht Naumburg
UNIFORM INTERPRETATION AND APPLICATION OF CISG (ART. 7(1) CISG) - RELEVANCE OF INTERNATIONAL CASE LAW
INCORPORATION OF STANDARD TERMS - CISG'S PROVISIONS ON CONTRACT FORMATION AND INTERPRETATION APPLICABLE (ARTS. 8, 14 ET SEQ. CISG)
INCORPORATION OF STANDARD TERMS - MERE REFERENCE TO THEM NOT SUFFICIENT - USER REQUIRED UNDER THE PRINCIPLE OF GOOD FAITH IN INTERNATIONAL TRADE (ART. 7(1) CISG) TO SUBMIT THE RELEVANT DOCUMENT OR MAKE SUCH TERMS ACCESSIBLE IN ANOTHER WAY TO THE RECIPIENT
A German seller and Swiss buyer concluded a contract for the supply of poppy seeds to be used in the production of various bakery products. Soon after the first consignments, the buyer notified the seller that the seeds showed a strong, musty and rancid flavor and, as a result, it ceased production. Upon examination by an analysis laboratory, the seeds turned out not to be marketable. The buyer brought an action against the seller claiming for damages.
The Court of first instance dismissed the buyer’s claim. In so doing, it declared not to have jurisdiction over the case on account of an arbitration clause that had become part of the contract by virtue of incorporation of the Netherlands Association for the Trade in Dried Fruit, Spices and Allied Products general conditions of sale into the parties’ agreement (hereinafter: NZV General Conditions). The buyer appealed.
The Appellate Court reversed the first instance decision. In so doing, the Court asserted that the lower court had erroneously failed to declare that the contract between the parties was governed by CISG pursuant to its Art. 1(1)(a). Accordingly, the question as to whether the NZV General Conditions had been incorporated into the contract had to be resolved according to CISG’s provisions dealing with contract formation and interpretation (Arts. 8, 14 and ff. CISG). In this respect, the Court noted that, although under German law a mere reference to standards terms can be sufficient in order for them to become part of the contract, and the same has been established by some foreign courts in relation to international disputes governed by CISG, under the Convention the view should be preferred that the party relying on such terms must submit the relevant document to the other party, or make them sufficiently available for it. In fact, as already ruled by the German Supreme Court (see Bundesgerichtshof, 09.01. 2002, in Unilex) it would counter to the principle of good faith enshrined in Art. 7(1) CISG if the recipient were under a duty to investigate the content of the standard terms where the declaring party had failed to adopt sufficient steps to make them accessible to it. In the light of the above, also considering that the NZV General Conditions were exclusively designed for Dutch businessmen and therefore the buyer could not have expected them to be applicable to its contract with the seller, the Court upheld the buyer’s claim but remanded the case to the first instance Court for further consideration.
Original in German:
- available at the University of Basel website, http://www.globalsaleslaw.org/
- available at the Pace Law University website, http://cisgw3.law.pace.edu/}}