BGH; 2018-12-06; IX ZR 22/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:061218UIXZR22.18.0
Date: 2018-12-06
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1206(51)_ENG_SUMJURE
JURE summary
JURE summary
A father (hereinafter 'the plaintiff') sought an order from his son living in Denmark (hereinafter 'the defendant') to pay monthly instalments totaling EUR 306_775.20, as well as a declaration determining that he was not obliged to return the collective liens against the property to the defendant and that the defendant was not entitled to interest and claims for damages due to the withholding of collective liens against the property. Finally, the applicant requested to determine whether an agreement concluded with the defendant for the relinquishment of inheritance and statutory shares was valid.
The basis of the plaintiff's claims are two loan agreements by which the plaintiff lent the defendant a sum of money. The collective liens on the defendant's property in Denmark served as collateral for the plaintiff's claims. A special clause in both agreements designated German law as applicable and Hamburg as the place of jurisdiction. The plaintiff terminated the loan agreements due to the defendant being in default. However, at a later stage, the parties to the dispute verbally agreed to the continuation of the loan agreements.
The Landgericht Hamburg (hereinafter ‘the Court of First Instance’) upheld the claim.
The appeal of the defendant was dismissed by the Hanseatic Oberlandesgericht (hereinafter ‘the Court of Appeal’). International jurisdiction was not established. It is true that there was a written agreement conferring jurisdiction, but this ceased to apply after the applicant terminated the loan agreements without notice.
The plaintiff's appeal to the Bundesgerichtshof (hereinafter ‘the Supreme Court’) is only partially admissible.
The applicant's appeal is partially inadmissible with regard to the claim for a declaration concerning the enforceability of the agreement for the relinquishment of inheritance and statutory shares. The reasoning of the Court of Appeal is unequivocal and clear. The Court of Appeal rightly limited the right of appeal on the grounds of the decision.
The action is admissible both in relation to the claims to the loan agreements and the negative declaratory action.
The Court of First Instance has jurisdiction under Article 23 of the Brussels I Regulation (1). The jurisdiction agreement in regard to both loan agreements is effective and has been duly concluded in writing. Neither the applicant's termination nor the subsequent agreement of the dispute to continue the loan agreements change that.
The jurisdiction agreement covers all disputes relating to the loan relationship and also relates to the verbal agreement to continue the loan agreements.
The Supreme Court overturned the judgment of the Court of Appeal. The case was referred back to the Court of Appeal for a new decision to the extent of the annulment.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.