Bundesgerichtshof; 2017-01-25; VIII ZR 257/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:250117UVIIIZR257.15.0
Date: 2017-01-25
Subject matter: Lugano Convention
Origin: Germany

82017DE0125(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person domiciled in Germany (hereinafter the 'plaintiff') filed an action seeking the repayment of a purchase price, the reimbursement of incurred livestock costs and a determination of the obligation to reimburse other necessary animal husbandry costs against a legal person domiciled in Switzerland (hereinafter the 'defendant'), who trades in horses. After the delivery of the horse to Germany, the plaintiff found out from X-rays that the horse was suffering from joint arthrosis.
The international jurisdiction of the German courts was given in accordance with Article 64(2)(a) of the new Lugano Convention (1).
The court of first instance (Landgericht Darmstadt, hereinafter ‘district court Darmstadt’) rejected the action as inadmissible due to a lack of international jurisdiction.
The court of appeal (Oberlandesgericht am Main, hereinafter ‘Higher Regional Court Frankfurt am Main’) confirmed the decision of the court of first instance and dismissed the plaintiff's appeal.
The plaintiff’s appeal before the Bundesgerichtshof (Federal Court of Justice, hereinafter ‘BGH’) was found admissible, but not justified.
Although the parties to the dispute had concluded a written sales contract and the jurisdiction of the place of defendant’s domicile had been agreed, the plaintiff argued that, due to a missing signature of the defendant on the contract, the condition of the mutual written statement of will concerning the agreement conferring jurisdiction was not fulfilled.
The BGH confirmed the legal opinion of the court of appeal. The written form requirement set out in the first sentence of Article 23(1)(a) of the new Lugano Convention does not prevent any party from expressing its declaration of intent in separate documents, provided that the content of both declarations is sufficiently clear. The BGH even pointed out that, in the broadest interpretation, the transmission by modern means of communication, which does not allow handwritten signatures (for example, e-mail communication), is sufficient.
It is crucial that a written declaration of intent is embodied in a visible text (2). As the BGH further held in the decision, more important than the signature of both parties to the written contract is whether the will stated in the contract has been realised. In the present case, the defendant delivered the horse to Germany and the plaintiff paid the purchase price in accordance with the contract. The declared wills were expressed undoubtedly.
The appeal further opposed the decision of the court of appeal which rejected the priority of German jurisdiction based on consumer matters within the meaning of Article 15(1)(c) and Article 16(1) of the new Lugano Convention. In this case, it was not a consumer contract. The plaintiff had not submitted any decisive arguments that the defendant had directed its activity to Germany. The activity 'export and import of horses' registered in the commercial register does not automatically mean the orientation to foreign markets. Additionally, a reference to Germany on the defendant’s Swiss website could not be found either.
The BGH rejected the plaintiff’s appeal against the decision of the court of appeal.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano, 2007).
(2) See judgment of the BGH of 02/22/2001, IX ZR 171/02.