Rechtbank Rotterdam, uitspraak van 28/01/2009 296323 / HA ZA 07-2943
Decision by national courts in the field of European Union law — ECLI:NL:RBROT:2009:BH1797
Date: 2009-01-28
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82009NL0128(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, domiciled in Schiedam (NL), transported a transformer from Italy to the Netherlands by order of the defendant, domiciled in Modena (IT). The claimant lodged a claim for payment with the Rechtbank of Rotterdam (NL). The defendant challenged the jurisdiction of the Rechtbank. Both parties invoked their general terms and conditions with conflicting clauses stipulating jurisdiction. The claimant had repeatedly sent offers and referred to its terms and conditions. The defendant had objected to their inclusion, and on its part had sent offers with reference to its terms and conditions in Italian. The claimant had always disclosed that it did not understand Italian. In conclusion, the parties met in Modena (IT) and the claimant signed the last offer the defendant had presented to it.
The Rechtbank of Rotterdam (NL) examines, within the framework of Article 23 Brussels I Regulation, whether the general terms and conditions of the claimant or the defendants were included into the contract. This is to be judged according to the Dutch law applicable to the contract. The Rechtbank finds that the parties had concluded a written contract in Modena (IT) in which the terms and conditions of the defendant were included. The inclusion of the general terms and conditions came under discussion. The claimant signed the defendant’s offer in the knowledge that it was not competent with the Italian language. Because the claimant made no proviso, it led the other party to believe justifiably that the offer and the terms and conditions were accepted unqualified. It makes no difference that the layout of the terms and conditions allowed for the signature of the claimant and that none was in fact given because Dutch law does not require a signature for the effective inclusion of terms and conditions. The defendant’s clause stipulating jurisdiction states that Modena is to be the exclusive place of jurisdiction. The Rechtbank declares itself lacking jurisdiction.