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BGH (Germany), 31 October 2001, CISG-online 617 (translation), in: Schwenzer, Ingeborg, Fountoulakis, Christiana, Dimsey, Mariel, International Sales Law - A Guide to the CISG, 3rd ed. 2018

BGH (Germany), 31 October 2001, CISG-online 617 (translation), in: Schwenzer, Ingeborg, Fountoulakis, Christiana, Dimsey, Mariel, International Sales Law - A Guide to the CISG, 3rd ed. 2018
Bundesgerichtshof (Germany),
31 October 2001,
CISG-online 61759


Defendant No. 1 [seller] sold to the plaintiff [buyer], a company located in Spain, pursuant
to an order confirmation of June 25, 1998, ‘based’ on [seller’s] Sales and Delivery Terms, a used computer-controlled CNC rolling-milling machine of the make L., model L 1202, year of manufacture 1981, ‘incl. the  provision of an L. mechanic at your plant for the duration of one business day’ for the price of DM [Deutsche Mark] 370,000; the Sales and Delivery Terms of the [seller], according to which used machines are sold and delivered ‘without any warranty against defects,’ were not attached to the order confirmation of June 25, 1998. After the machine was transported to Spain by a moving company hired by the [buyer], the [buyer] had the machine installed and connected by a Spanish company. Mechanic A., who was dispatched by company L., was unable to put the machine into operation during his visits of July 15-18, 1998 and July 21-27, 1998. With the assistance of an electronics specialist from company L., only during a third visit of September 28 to October 1, 1998, were the problems resolved; since then, the machine has been working without problems. The Plaintiff [buyer] demands from the Defendant No. 1 [seller], and from Defendant No. 2, the personally liable shareholder, the damages that arose in connection with this work. The Landgericht [Regional Court, Court of First Instance] granted the [buyer’s] claim in the amount of DM 46,519.18 plus interest and dismissed [buyer's] claim with respect to an amount of DM 3,449.57. The Court viewed the order confirmation of June 25, 1998 as providing that the [seller], by promising to provide a mechanic for the duration of one business day, wanted to be responsible for the successful putting into operation of the machine, so that the [seller] was responsible for dispatching a sufficiently qualified technician and is liable for the costs of the technically under-qualified mechanic A. The Oberlandesgericht [Court of Appeals, Court of Second Instance] vacated the judgment of the Court of First Instance insofar as the Defendants were found liable to pay and remanded the matter to the Lower Court. With their—permissible—appeal, the Defendants further pursue their motion to dismiss.


I. The Court of Appeals explained that the proceeding in the Lower Court suffers from
a material defect because the Court of First Instance did not completely understand and take into consideration the statements of the [seller] concerning the ‘provision of an L. mechanic,’ thus incorrectly interpreted the agreement of the parties and, on this basis, omitted the necessary further clarification. The duty to ‘provide an L. mechanic for the duration of one business day’ is already ‘per se, according to its wording, unambiguous and not to be interpreted the way the appealed decision did. The undisputed statements of the [seller] that the agreement was reached within the framework of the price negotiations after the [seller] was not prepared to agree to further price reductions and the [buyer] pointed to its costs for the installation and instruction, squarely contradicts the interpretation of the Court of First Instance. Against this background, the Court of Appeals held that the temporally clearly-defined promise to ‘provide an L. mechanic’ must be deemed a financial accommodation alone. The Court of Appeals held that the lawsuit is also not ripe for decision for any other reason. The [buyer] has properly pleaded a claim for damages under arts 45(1)(b), 35(1), 74 CISG against the [seller], for which Defendant No. 2 is liable under §§ 162(2), 128 HGB. The [seller] has not effectively precluded its liability for any breach of contract. Because the [seller's] Sales and Delivery Terms were not made applicable to the contractual relationship pursuant to the CISG, the warranty exclusion in that body of law does not apply. The decision of the lawsuit, thus depends on whether the rolling-milling machine was afflicted with a defect that was covered by a warranty at the time of the transfer to a freight carrier and what costs arose from its removal. The Court of First Instance must evaluate the evidence relating to this issue.

II. These arguments do not withstand legal scrutiny in all respects. ...
1. According to the general view, the inclusion of general terms and conditions into a contract that is governed by the CISG is subject to the provisions regarding the conclusion of a contract (Arts 14, 18 CISG); recourse to the national law that is applicable based on a conflict of laws analysis is generally not available .... The CISG does not, however, contain special rules regarding the inclusion of standard terms and conditions into a contract. This was not deemed necessary because the Convention already contains rules regarding the interpretation of contracts. ...
2. Thus, through an interpretation according to Art 8 CISG, it must be determined whether the general terms and conditions are part of the offer, which can already follow froom the negotiations between the parties, the existing practices between the parties, or international customs (Art 8(3) CISG). As for the rest, it must be analysed how a ‘reasonable person of the same kind as the other party’ would have understood the offer (Art 8(2) CISG). It is unanimously required that the recipient of a contract offer that is supposed to be based on general terms and conditions have the possibility to become aware of them in a reasonable manner ... An effective inclusion of general terms and conditions thus first requires that the intention of the offeror that he wants to include his terms and conditions into the contract be apparent to the recipient of the offer. In addition, as the Court of Appeals correctly assumed, the Uniform Sales Law requires the user of general terms and conditions to transmit the text or make it available in another way .... The opponent [other party] of the user of the clause can often not foresee to what clause text he agrees in a specific case because significant differences exist between the particular national clauses in view of the different national legal systems and customs; also, a control of the content of general terms and conditions under national law (Art 4 (Second sentence)(a) CISG) is not always guaranteed .... It is true that, in many cases, there will be the possibility to make inquiries into the content of the general terms and conditions. This can, however, lead to delays in the conclusion of the contract, in which neither party can have an interest. For the user of the clauses, however, it is easily possible to attach to his offer the general terms and conditions, which generally favor him. It would, therefore, contradict the principle of good faith in international trade (Art 7(1) CISG) as well as the general obligations of cooperation and information of the parties ... to impose on the other party an obligation to inquire concerning the clause that have not been transmitted and to burden him with the risks and disadvantages of the unknown general terms and conditions of the other party.
3. Insofar as the general terms and conditions at issue become a part of the contract under German non-CISG law and/or in commercial relations between merchants where the customer does not know them but has the possibility of reasonable notice—eg. by requesting them from the user ..., this does not lead to a different result. In the national legal system, the clauses within one industry Sector are often similar and usually known to the participating merchants. To the extent that this does not apply to a commercially-active contract party, it can be expected of him, in good faith, that he make the clauses available to the other party, if he wants to close the deal—as offered by the user based on the general terms and conditions. These requirements do not, however, apply to the same extent to international commercial relations, so that, under the principles of good faith of the other party, a duty to inquire cannot be expected of him.

5. If, therefore, the effective inclusion of the Sales and Delivery Terms of the [seller] into its contract with the [buyer] is missing, the objections raised—in the alternative—by the [buyer] against the effectiveness of a complete exclusion of warranties in the sale of used machines, is irrelevant.

IV. The appealed judgment is thus vacated, and the matter remanded to the Court of Appeals for further clarification concerning the defects in the delivered rolling-milling machine alleged by the [buyer] and, if appropriate, concerning the extent of the necessary expenses for removal.

59Translation taken from CISG Pace (citations omitted).

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