District Court 's-Hertogenbosch follows German Supreme Court regarding Standard Terms

The Dutch District Court 's-Hertogenbosch decided Heras Mobile Fencing & Security v. Kurt Leirich Mietservice on 26 January 2011. The decision's full text, originally written in Dutch, has now been translated into English by Tom J. Vennmanns, who is a PhD student Smart Contracts & Dispute Resolution at Radboud Universität Nijmegen. We are very grateful for his translation that can now be accessed via the case presentation about CISG-online no. 5324 (below).

The decision concerns a choice-of-forum-clause contained in the seller's standard terms. The Court applied Art. 23 Brussel-I-Regulation (old version) and noted that this Regulation does not contain any rules on the incorporation of Standard Terms. Since both parties were from Contracting States of the CISG (Netherlands and Austria), the CISG was considered applicable to this preliminary question.

The Standard Terms were only referenced in the documents but not send to the buyer. In applying Arts. 8, 14, 18 CISG and refering in a commendable manner to international jurisprudence in Germany, Austria and Belgium, the Court held:

"The District Court shares the opinion of the BGH that it follows from the system of the CISG that the user’s other party must have the opportunity to take note of the general terms and conditions in an appropriate manner and that it is up to the user to send the general terms and conditions to the other party or to otherwise make them accessible. In the District Court’s opinion, this requirement has not been properly met with the mere reference to general terms and conditions on an order confirmation, whether or not it is accompanied by the notice that the general terms and conditions can be requested. In the present case, it is possible to leave open whether or not this requirement was met by stating that general terms and conditions can be downloaded from a user’s website, since [Seller] first referred to this possibility on the invoice of 11 May 2009 and therefore did not inform [Seller] of this possibility in time. In general, for the reasons stated by the BGH, the user of general terms and conditions may be required to make an effort to make his other party acquaint himself with his general terms and conditions, rather than the other party being required to make an effort to gain access to these terms and conditions." (para. 16 of the translation)

Heras Mobile Fencing & Security v. Kurt Leirich Mietservice
Rechtbank 's-Hertogenbosch (District Court 's-Hertogenbosch)
Netherlands, 26 January 2011 – 216790 / HA ZA 10-1932, CISG-online 5324