Rechtbank Zwolle, uitspraak van 19/12/2007 134963 / HA ZA 07-976 High Performance Pc B.V. / Trendcom Gmbh
Decision by national courts in the field of European Union law — ECLI:NL:RBZLY:2007:BD1582
Date: 2007-12-19
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82007NL1219(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant, which has its seat in the Netherlands, delivered goods to the defendant, which has its seat in Germany. After invoices remained unpaid, it brought an action before the Rechtbank of Zwolle (NL). The defendant pleaded a lack of international jurisdiction. The claimant invoked a jurisdiction clause in its general terms and conditions of business (T&C). It had first referred to its T&C at a market in March 2005 and handed them to B, who expressed assent to them in the name of the defendant. Before the conclusion of the first contract, the claimant sent the terms and conditions of business to the defendant and received them back with the signature of B. The defendant objected on the basis that the employment relationship with B only began in September 2005 and that B was never authorised to sign on its behalf.
It asserted that in July 2005, B was an employee of the company C, to which the claimant likewise delivered goods. In addition, it argued that the terms and conditions of business were written in English, and the defendant was a German company.
The Rechtbank of Zwolle (NL) considers it as proven that the general terms and conditions of business were validly agreed upon by the parties. Even if B was not in an employment relationship with the defendant at the time he signed the terms and conditions of business, it may not be ruled out that he was acting as an agent for the defendant, or that at the least the claimant could rely on him acting as an agent for the defendant. Lastly, B was already acting for the defendant at the market in March 2005. The claimant was entitled to assume that the defendant validly accepted the general terms and conditions of business. The assertion that incorporation must fail because it had been drafted in English is without any legal basis. The Rechtbank holds that it has jurisdiction, but allows an appeal against this interim judgment.