1 BY AN ORDER OF 18 FEBRUARY 1976 , RECEIVED AT THE COURT REGISTRY ON 11 MARCH 1976 , THE BUNDESGERICHTSHOF REFERRED TO THE COURT OF JUSTICE , PURSUANT TO THE PROTOCOL OF 3 JUNE 1971 ON THE INTERPRETATION OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS ( HEREINAFTER REFERRED TO AS ' THE CONVENTION ' ), TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 17 OF THE SAID CONVENTION .
2 IT APPEARS FROM THE ORDER MAKING THE REFERENCE THAT AT THE PRESENT STAGE THE ACTION , WHICH WAS BROUGHT BEFORE THE BUNDESGERICHTSHOF BY WAY OF APPEAL ON A POINT OF LAW , CONCERNS THE JURISDICTION OF THE LANDGERICHT HAMBURG TO HEAR AN ACTION BROUGHT BY A TRADING UNDERTAKING ESTABLISHED WITHIN THE AREA OF ITS JURISDICTION AGAINST A TRADING COMPANY HAVING ITS REGISTERED OFFICE IN BRUSSELS , FOR PAYMENT OF THE BALANCE OF THE PRICE OF A BATCH OF CARPETS BOUGHT IN HAMBURG BY THE BRUSSELS FIRM .
THE CONTRACT WAS CONCLUDED ORALLY BETWEEN THE PARTIES , AND THE VENDOR PERFORMED HIS SIDE OF IT ON THE SAME DAY IN CONSIDERATION OF A PART-PAYMENT MADE BY THE PURCHASER .
ON HANDING OVER THE GOODS , THE VENDOR DELIVERED TO THE PURCHASER A DOCUMENT DESCRIBED AS ' CONFIRMATION OF ORDER AND INVOICE ' , WHICH STATED THAT THE SALE AND THE DELIVERY HAD TAKEN PLACE ' SUBJECT TO THE CONDITIONS STATED ON THE REVERSE ' .
THE ' CONDITIONS OF SALE , DELIVERY AND PAYMENT ' PRINTED ON THE REVERSE OF THIS DOCUMENT CONTAINED INTER ALIA A CLAUSE STIPULATING THAT ALL DISPUTES WERE TO BE DECIDED EXCLUSIVELY BY THE HAMBURG COURTS .
THIS DOCUMENT WAS NOT CONFIRMED BY THE PURCHASER .
3 AFTER THE PURCHASER HAD RECEIVED FORMAL NOTICE TO PAY THE BALANCE OF THE PURCHASE PRICE , THE VENDOR BROUGHT AN ACTION BEFORE THE LANDGERICHT HAMBURG WHICH , BY A JUDGMENT IN DEFAULT DELIVERED ON 16 MAY 1973 , ORDERED THE PURCHASER TO PAY THE BALANCE WITH INTEREST THEREON FOR DELAY .
ON THE PURCHASER ' S ENTERING AN OBJECTION , THE LANDGERICHT , BY A JUDGMENT OF 17 DECEMBER 1973 , WITHDREW ITS FIRST JUDGMENT AND DECLARED THAT IT HAD NO JURISDICTION , ON THE GROUND THAT THE PARTIES HAD NOT CONCLUDED ANY AGREEMENT CONFERRING JURISDICTION WITHIN THE MEANING OF ARTICLE 17 OF THE CONVENTION .
THE VENDOR BROUGHT AN APPEAL BEFORE THE HANSEATISCHES OBERLANDESGERICHT WHICH QUASHED THE DECISION OF THE LANDGERICHT AND REMITTED THE CASE TO THAT COURT , HOLDING THAT AN AGREEMENT CONFERRING JURISDICTION HAD BEEN VALIDLY CONCLUDED BETWEEN THE PARTIES UNDER ARTICLE 17 OF THE CONVENTION .
4 AN APPEAL ON A POINT OF LAW BY THE PURCHASER AGAINST THIS JUDGMENT IS AT PRESENT BEFORE THE BUNDESGERICHTSHOF .
IN THIS CONNEXION , THE BUNDESGERICHTSHOF HAS REFERRED TO THE COURT TWO QUESTIONS CONCERNING THE INTERPRETATION OF THE FIRST PARAGRAPH OF ARTICLE 17 .
THE INTERPRETATION OF ARTICLE 17 OF THE CONVENTION IN GENERAL
5 THE FIRST PARAGRAPH OF ARTICLE 17 OF THE CONVENTION PROVIDES :
' IF THE PARTIES , ONE OR MORE OF WHOM IS DOMICILED IN A CONTRACTING STATE , HAVE , BY AGREEMENT IN WRITING OR BY AN ORAL AGREEMENT CONFIRMED IN WRITING , AGREED THAT A COURT OR THE COURTS OF A CONTRACTING STATE ARE TO HAVE JURISDICTION TO SETTLE ANY DISPUTES WHICH HAVE ARISEN OR WHICH MAY ARISE IN CONNEXION WITH A PARTICULAR LEGAL RELATIONSHIP , THAT COURT OR THOSE COURTS SHALL HAVE EXCLUSIVE JURISDICTION ' .
6 THE WAY IN WHICH THAT PROVISION IS TO BE APPLIED MUST BE INTERPRETED IN THE LIGHT OF THE EFFECT OF THE CONFERMENT OF JURISDICTION BY CONSENT , WHICH IS TO EXCLUDE BOTH THE JURISDICTION DETERMINED BY THE GENERAL PRINCIPLE LAID DOWN IN ARTICLE 2 AND THE SPECIAL JURISDICTIONS PROVIDED FOR IN ARTICLES 5 AND 6 OF THE CONVENTION .
IN VIEW OF THE CONSEQUENCES THAT SUCH AN OPTION MAY HAVE ON THE POSITION OF THE PARTIES TO THE ACTION , THE REQUIREMENTS SET OUT IN ARTICLE 17 GOVERNING THE VALIDITY OF CLAUSES CONFERRING JURISDICTION MUST BE STRICTLY CONSTRUED .
BY MAKING SUCH VALIDITY SUBJECT TO THE EXISTENCE OF AN ' AGREEMENT ' BETWEEN THE PARTIES , ARTICLE 17 IMPOSES UPON THE COURT BEFORE WHICH THE MATTER IS BROUGHT THE DUTY OF EXAMINING , FIRST , WHETHER THE CLAUSE CONFERRING JURISDICTION UPON IT WAS IN FACT THE SUBJECT OF A CONSENSUS BETWEEN THE PARTIES , WHICH MUST BE CLEARLY AND PRECISELY DEMONSTRATED .
THE PURPOSE OF THE FORMAL REQUIREMENTS IMPOSED BY ARTICLE 17 IS TO ENSURE THAT THE CONSENSUS BETWEEN THE PARTIES IS IN FACT ESTABLISHED .
THE QUESTIONS REFERRED TO THE COURT BY THE BUNDESGERICHTSHOF MUST BE EXAMINED IN THE LIGHT OF THESE CONSIDERATIONS .
THE QUESTIONS REFERRED BY THE BUNDESGERICHTSHOF
7 THE FIRST QUESTION IS WHETHER THE REQUIREMENTS OF ARTICLE 17 OF THE CONVENTION ARE SATISFIED IF , AT THE ORAL CONCLUSION OF A CONTRACT OF SALE , A VENDOR HAS STATED THAT HE WISHES TO RELY ON HIS GENERAL CONDITIONS OF SALE AND IF HE SUBSEQUENTLY CONFIRMS THE CONTRACT IN WRITING TO THE PURCHASER AND ANNEXES TO THIS CONFIRMATION HIS GENERAL CONDITIONS OF SALE WHICH CONTAIN A CLAUSE CONFERRING JURISDICTION .
8 IN ACCORDANCE WITH THE FOREGOING GENERAL CONSIDERATIONS , IT CANNOT BE PRESUMED THAT ONE OF THE PARTIES WAIVES THE ADVANTAGE OF THE PROVISIONS OF THE CONVENTION CONFERRING JURISDICTION .
EVEN IF , IN AN ORALLY CONCLUDED CONTRACT , THE PURCHASER AGREES TO ABIDE BY THE VENDOR ' S GENERAL CONDITIONS , HE IS NOT FOR THAT REASON TO BE DEEMED TO HAVE AGREED TO ANY CLAUSE CONFERRING JURISDICTION WHICH MIGHT APPEAR IN THOSE GENERAL CONDITIONS .
IT FOLLOWS THAT A CONFIRMATION IN WRITING OF THE CONTRACT BY THE VENDOR , ACCOMPANIED BY THE TEXT OF HIS GENERAL CONDITIONS , IS WITHOUT EFFECT , AS REGARDS ANY CLAUSE CONFERRING JURISDICTION WHICH IT MIGHT CONTAIN , UNLESS THE PURCHASER AGREES TO IT IN WRITING .
9 THE SECOND QUESTION THEN ASKS WHETHER ARTICLE 17 OF THE CONVENTION APPLIES IF , IN DEALINGS BETWEEN MERCHANTS , A VENDOR , AFTER THE ORAL CONCLUSION OF A CONTRACT OF SALE , CONFIRMS IN WRITING TO THE PURCHASER THE CONCLUSION OF THE CONTRACT SUBJECT TO HIS GENERAL CONDITIONS OF SALE AND ANNEXES TO THIS DOCUMENT HIS CONDITIONS OF SALE WHICH INCLUDE A CLAUSE CONFERRING JURISDICTION AND IF THE PURCHASER DOES NOT CHALLENGE THIS WRITTEN CONFIRMATION .
10 IT EMERGES FROM A COMPARISON OF THE WORDING OF THE TWO QUESTIONS AND FROM THE EXPLANATIONS GIVEN DURING THE PROCEEDINGS BEFORE THE COURT THAT THE SECOND OF THE TWO QUESTIONS CONCERNS THE HYPOTHETICAL SITUATION OF A SALE BEING CONCLUDED WITHOUT ANY REFERENCE BEING MADE AT ALL TO THE EXISTENCE OF GENERAL CONDITIONS OF SALE .
IN SUCH A CASE , IT IS PATENT THAT A CLAUSE CONFERRING JURISDICTION WHICH MIGHT BE INCLUDED IN THOSE GENERAL CONDITIONS DID NOT FORM PART OF THE SUBJECT-MATTER OF THE CONTRACT CONCLUDED ORALLY BETWEEN THE PARTIES .
THEREFORE SUBSEQUENT NOTIFICATION OF GENERAL CONDITIONS CONTAINING SUCH A CLAUSE IS NOT CAPABLE OF ALTERING THE TERMS AGREED BETWEEN THE PARTIES , EXCEPT IF THOSE CONDITIONS ARE EXPRESSLY ACCEPTED IN WRITING BY THE PURCHASER .
11 IT FOLLOWS FROM THE FOREGOING , IN BOTH OF THE ALTERNATIVE CASES SUGGESTED BY THE BUNDESGERICHTSHOF , THAT A UNILATERAL DECLARATION IN WRITING SUCH AS THE ONE IN THE PRESENT CASE IS NOT SUFFICIENT TO CONSTITUTE AN AGREEMENT ON JURISDICTION BY CONSENT .
HOWEVER , IT WOULD BE OTHERWISE WHERE AN ORAL AGREEMENT FORMS PART OF A CONTINUING TRADING RELATIONSHIP BETWEEN THE PARTIES , PROVIDED ALSO THAT IT IS ESTABLISHED THAT THE DEALINGS TAKEN AS A WHOLE ARE GOVERNED BY THE GENERAL CONDITIONS OF THE PARTY GIVING THE CONFIRMATION , AND THESE CONDITIONS CONTAIN A CLAUSE CONFERRING JURISDICTION .
INDEED , IN SUCH A CONTEXT , IT WOULD BE CONTRARY TO GOOD FAITH FOR THE RECIPIENT OF THE CONFIRMATION TO DENY THE EXISTENCE OF A JURISDICTION CONFERRED BY CONSENT , EVEN IF HE HAD GIVEN NO ACCEPTANCE IN WRITING .
12 IT IS THEREFORE POSSIBLE TO GIVE A SINGLE ANSWER TO THE TWO QUESTIONS REFERRED TO THE COURT AS FOLLOWS : IN THE CASE OF AN ORALLY CONCLUDED CONTRACT , THE REQUIREMENTS OF THE FIRST PARAGRAPH OF ARTICLE 17 AS TO FORM ARE SATISFIED ONLY IF THE VENDOR ' S CONFIRMATION IN WRITING ACCOMPANIED BY NOTIFICATION OF THE GENERAL CONDITIONS OF SALE HAS BEEN ACCEPTED IN WRITING BY THE PURCHASER .
THE FACT THAT THE PURCHASER DOES NOT RAISE ANY OBJECTIONS AGAINST A CONFIRMATION ISSUED UNILATERALLY BY THE OTHER PARTY DOES NOT AMOUNT TO ACCEPTANCE ON HIS PART OF THE CLAUSE CONFERRING JURISDICTION , UNLESS THE ORAL AGREEMENT COMES WITHIN THE FRAMEWORK OF A CONTINUING TRADING RELATIONSHIP BETWEEN THE PARTIES WHICH IS BASED ON THE GENERAL CONDITIONS OF ONE OF THEM , AND THOSE CONDITIONS CONTAIN A CLAUSE CONFERRING JURISDICTION .
COSTS
13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BUNDESGERICHTSHOF , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESGERICHTSHOF BY ORDER OF 18 FEBRUARY 1976 , HEREBY RULES :
IN THE CASE OF AN ORALLY CONCLUDED CONTRACT , THE REQUIREMENTS OF THE FIRST PARAGRAPH OF ARTICLE 17 OF THE CONVENTION OF 27 SEPTEMBER 1968 ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS AS TO FORM ARE SATISFIED ONLY IF THE VENDOR ' S CONFIRMATION IN WRITING ACCOMPANIED BY NOTIFICATION OF THE GENERAL CONDITIONS OF SALE HAS BEEN ACCEPTED IN WRITING BY THE PURCHASER .
THE FACT THAT THE PURCHASER DOES NOT RAISE ANY OBJECTIONS AGAINST A CONFIRMATION ISSUED UNILATERALLY BY THE OTHER PARTY DOES NOT AMOUNT TO ACCEPTANCE ON HIS PART OF THE CLAUSE CONFERRING JURISDICTION UNLESS THE ORAL AGREEMENT COMES WITHIN THE FRAMEWORK OF A CONTINUING TRADING RELATIONSHIP BETWEEN THE PARTIES WHICH IS BASED ON THE GENERAL CONDITIONS OF ONE OF THEM , AND THOSE CONDITIONS CONTAIN A CLAUSE CONFERRING JURISDICTION .
