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BGH NJW 1985, 1838
VIII. Civil Senate
20 March 1985
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs. Irene Snook
Professor B.S. Markesinis


On 27 October 1980, the debtor in bankruptcy ordered from the claimant clocks operating as time switches which were to be fitted into electrical stoves; the contract was subject to the general conditions of trade printed on the back of the claimant's order forms Under No 14 the order form states that changes in the order must normally be in writing and that the purchasing conditions of the debtor in bankruptcy applied. No. 16 of these conditions states: "Differing conditions of trade. By accepting our order, the supplier agrees to our purchasing conditions. Where our order is confirmed by the supplier using conditions deviating therefrom, our conditions of purchase will continue exclusively to apply, even if we do not expressly raise any objections. Deviations will thus only apply where they have been expressly agreed by us in writing. If the supplier objects to this practice, he must immediately and specifically state his objections in a separate letter. In such cases we retain the right to cancel the order and no claims against us will result from such action. Our conditions will also apply for future transactions, even where they are not specifically referred to, as long as they have reached the customer in the course of an order confirmed by us."

On 11 February 1982, the debtor in bankruptcy placed with the claimant a follow-up order for the supply of further thermostats. The claimant confirmed the order referring to his General Conditions of Supply and Payment according to which his written confirmation of the order in conjunction with these Conditions were to apply exclusively. Any amendments or additions to the contractual clauses were only valid in written form; No. 7 of these general conditions contains an extended and expanded retention of proprietary rights for goods delivered. The claimant supplied the time switches and thermostats of a total value of DM 454 245.58. On 21 may 1982, the debtor in bankruptcy requested that conciliation proceedings be started. At that time, out of the above-mentioned and still unpaid deliveries he still had in stock switches not yet installed of a total value of DM 47 789.05 had already been installed in finished stoves which were still at the debtor's premises. During July/August 1982, the debtor in bankruptcy paid the equivalent price for the pieces which were not yet installed. On 29 October 1982, "follow up" bankruptcy proceedings were started in respect of the debtor's assets and the defendant appointed as receiver in bankruptcy. The claimant demanded from the defendant payment of the value of the appliances which, on 21 May 1982, had already been installed in stoves which were still with the bankrupt debtor. He also requested information as to what claims the bankrupt had on 21 May 1982 stemming from sales of stoves containing the switches and energy regulators supplied by him. The Landgericht rejected the claim. The claimant's appeal and further appeal were also unsuccessful.


1. The solution to the legal problem of the litigation depends on whether or not No. 7 of the General Conditions of Trade (AGB) had become part of the contract. If this is the case, the claimant's claim for payment can be justified on the basis of para. 46 of the Bankruptcy Order (Konkursordnung/KO) or on paras 989 et seq. BGB, para. 59 1 No. 1 KO or para. 812 et seq. BGB, para. 591 No. 4 KO (see Senate, NJW 1982, 1749 = WM 1982, 486). As a result of the assignment of future claims, the claimant would also be entitled to any outstanding claims which the debtor in bankruptcy has against his customers and which were subject to such an assignment, so that the request for information would also be justified (para. 402 BGB). But if No. 7 of the claimant's General Conditions of Trade has not become part of the contract, the demand for payment and for information are unfounded.

It is possible that the claimant transferred ownership in the switches only under the suspensory condition of full payment of the purchase price. The debtor in bankruptcy had to assume such retention of title given his knowledge of the claimant's general conditions of trade when the contract was concluded (see Senate, NJW 1982, 1749 = WM 1982, 486). But in this case this fact does not lead to a successful further appeal since the claimant, even before he made a request for a settlement during composition proceedings, had lost the ownership of the switches at the latest point when they were fitted into the stoves (para. 947 11 BGB). He thus only had an ordinary claim in bankruptcy which could not be made outside of bankruptcy proceedings. Since claims from the sales of these stoves had not in advance been assigned to the claimant, he likewise had no right to demand information as to the sales.


1. Following the decision of the Landgericht, the court of appeal assumed that the claimant's General Conditions of Sale and Payment, and thus condition No. 7, had not become part of the contract. They had not been agreed upon by separate contract. A tacit inclusion into the contract is barred by the debtor's conditions of purchase known to the claimant. The defensive clauses contained in No. 16 of these conditions are not invalid according to para. 9 of the Act on General Conditions of Trade (AGB-Gesetz). By this clause, the debtor in bankruptcy intended to secure for all of his transactions as uniform contractual conditions as possible and especially to preclude suppliers' retention of title. This aim cannot be objected to, since any retention of title impedes at least any transfer of ownership by way of security which is normally linked to business arrangements for bank loans.

2. These arguments can withstand legal scrutiny, at least as far as their result is concerned.

a) In commercial business transactions, the inclusion of general conditions of trade in single contracts requires that the contractual partners tacitly or specifically agree on their application (Senate, WM 1979, 19 (20) and NJW 1978, 978 with further references).

Without any legal error, the court of appeal has rejected the existence of an explicit agreement on the applicability of the claimant's general conditions of trade for this particular contract. The further appeal does not refute this argument. The court of appeal furthermore correctly assumed that the debtor in bankruptcy had not tacitly agreed to a total inclusion of the claimant's general conditions of trade. The assumption that the debtor in bankruptcy tacitly agreed to the claimant's conditions of sale is countermanded by the unequivocal statement contained in his conditions of purchase that he intended exclusively to conclude contracts according to his conditions and that differing conditions contained in a confirmation of orders will only apply once they have been agreed by him in writing. In this context it is irrelevant, whether or not the defensive clause has itself become part of the contract, a clause which was intended to make it clear during contractual discussions, i.e. before the contract was signed, that the purchaser will not be bound by any clauses contained in the seller's trading conditions except for those enumerated in the defensive clause itself. What matters is solely the debtor's intentions as expressed in the defensive clause after the claimant had confirmed the order, though with reference to his own general conditions and such change is not discernible from the facts of the case. As the appeal court assumes and the further appeal obviously does not dispute, in view of the - advance - objection to the application of the claimant's general conditions as explicitly stated in the debtor's defensive clause, and in the absence of other circumstances, such a change of intention cannot be thought to have taken place, especially not from the fact that the debtor failed once more to reject the claimant's conditions of sale and accepted the goods without reservation (see Senate, WM 1977, 451 (452)).

Without a contractual agreement between the partners concerning the claimant's conditions of sale, these have not altogether become part of the contract. The further appeal acknowledges this point.

b) However, the further appeal submits that the debtor in bankruptcy's defensive clause which bars a wholesale inclusion of the claimant's conditions of sale in the contract, does not preclude the fact that certain clauses of these conditions of sale have nonetheless become part of the contract. The defensive clause only excludes the claimant's conditions of sale in so far as these deviate from the debtor's purchasing conditions; it does not also exclude additional conditions to which the debtor had not expressly objected, such as No. 7 of the sales conditions containing rules on an extended retention of ownership with a clause on processing and advance assignment of rights, all the more where such additional conditions are customary for this particular line of business. The court cannot uphold this reasoning.

aa) Where a contract, as here, has been concluded without agreement on the application of the general conditions of trade of one party, this does not mean that the corresponding optional legal rules automatically apply (see Bunte ZIP 1982, 449 (450) with overview over the various legal opinions; Wolf in: Wolf-Horn-Lindacher AGB-Gesetz para. 2, note 77; Ulmer, in: Ulmer-Brandner-Hensen AGB-Kommentar, 4. ed., para. 2, note 101; Erman-Hefermehl BGB, 7. ed., para. 2 AGB-Gesetz, note 48) in such a case and instead of the rules contained in the general conditions. From the intentions of the parties it can rather be deduced that such rules deviating from or supplementing optional legal rules will apply which have been set out in the general conditions of either party and where these conditions are of identical content and where their application has thus been intended by both parties.

bb) such apparent consensus is however missing, where one party's general conditions of trade contain "additional" rules which have no equivalent in the other party's conditions, such as - as here - the use of clauses on the retention of ownership. The question as to whether or not in such a case a tacit consent can be assumed of one party to the unilaterally fixed additional conditions of the other contractual partner, even where both parties' general conditions do not result in a consensus of intentions, can only be answered according to the intention of the party opposing the clause, in so far as this can be discerned from all other circumstances of the case (see Ulmer, para. 2, note 104; Löwe-Graf von Westphalen-Trinkner, AGB-Gesetz, para. 2, ote 47). In this case, no intention of the debtor in bankruptcy can be ascertained to indicate that his defensive clause was merely meant to exclude the claimant's sales conditions insofar as they run counter to his own conditions of purchase but not also other additional rules. By his defensive clause, the debtor clearly and unequivocally expressed his intention that for any orders placed only his own purchase conditions applied and that, without his expressed written acknowledgement, any other conditions would not become part of the contract even where he fails formally to object to them. The debtor in bankruptcy thereby unequivocally expressed his intention that his own conditions of purchase only leave room for the claimant's conditions of sale where and insofar as their contents are either identical with his own or where they have been agreed by him in writing (for a similar case see: Senate NJW 1979, 2199 = WM 1979, 805). There was therefore no need for the debtor to raise a specific objection against the retention of ownership clause contained in the claimant's conditions of sale in order to prevent the clause from becoming part of the contract.

No other result can be reached in respect of this clause on the retention of ownership just because it possibly is part of customary law applicable for this line of bus… [UNFINISHED]