Opinion of mr advocate-general Capotorti

Mr President,

Members of the Court,

1. This case, like Case 24/76, is concerned with the interpretation of Article 17 of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters; here too, therefore, we have to consider the requirements which need to be satisfied by an agreement assigning jurisdiction (which, in the present case, is invoked by the vendor against the purchaser). But, in contrast to Case 24/76, the questions referred by the German Bundesgerichtshof for a preliminary ruling on this occasion are concerned with the case of an oral contract. The issues raised thereby are concerned both with the conditions necessary for an oral agreement assigning jurisdiction to be deemed to exist and with the way in which the assignment agreement is, as required by Article 17, to be confirmed in writing for it to be recognized as valid.

2. Under Article 17 an oral agreement for jurisdiction by consent is, with a view to expediting trade, a valid means of conferring exclusive jurisdiction on the selected court but, out of consideration for the certainty of legal relationships and the protection of the weaker party, such an agreement has effect only if it is followed by confirmation in writing (the article cited requires in terms an oral agreement confirmed in writing). Such confirmation must obviously be such as to fulfil the purpose for which it was required. Furthermore, especially when the clause assigning jurisdiction is one of a set of general conditions pre-determined by one of the parties, particular care must be taken to ensure that confirmation is effected in such a way as to leave no doubt concerning the agreement of the other party to the assignment of jurisdiction.

3. In the light of the foregoing considerations, I come now to consider the case, set out in the first question, where, at the time of the oral conclusion of a contract of sale, the vendor did no more than make a unilateral and very general declaration of his intention to contract on the basis of the general conditions which he himself had laid down. In a case of this kind can the jurisdiction clause be regarded as having been incorporated in the agreement although there has never been any direct mention of it?

4. Nor is the view which I have developed up to this point invalidated by the objection that it goes beyond consideration of the formal requirements provided for by Article 17 of the Convention since it broaches the question of the conditions required for the existence of an agreement selecting jurisdiction to be valid. In fact, the questions submitted by the national court are concerned with the extent to which particular circumstances meet the requirements (all the requirements) laid down by Article 17, and the sufficiency of particular conduct for the purposes of that article. Article 17 must accordingly be viewed as a whole and it is clear that, even before laying down specific requirements as to form, its purpose is to ensure that the parties have concluded an agreement (or agreed on a clause) the purpose of which is to select a forum which is to be seised of disputes which have arisen or are liable to arise out of a given legal relationship. That is to say, the rule in question also includes conditions of substance, the first of which is the existence of an agreement of a certain type and which has a particular purpose.

5. Consideration of the second question submitted by the national court does not, at this juncture, call for much comment. As this Court is aware, the difference between the case stated in the first question and that in the second question is the following: in the first, the vendor's statement that he intends to apply his own general conditions to the contract is assumed to have been made at the time when the contract was orally concluded; in the second, the declaration is assumed to have been made in writing only after the oral conclusion of the contract and without protest on the part of the purchaser. In these circumstances, it seems clear that when, during the negotiations which lead to the oral contract of sale, there is not even any reference to the general conditions including the assignment clause, that consensus of wills on the assignment of jurisdiction without which there cannot be any confirmation within the meaning of Article 17 is absolutely lacking.

6. It is accordingly my opinion that the Court should reply to the questions of the Bundesgerichtshof by ruling that the requirements of Article 17 of the Brussels Convention of 27 September 1968 are not satisfied if, during the oral conclusion of a contract of sale, the vendor indicates that he wishes to rely on the general conditions of sale laid down by himself and does no more than make a general reference to those conditions without specifically mentioning the assignment of jurisdiction and subsequently sends to the purchaser a written confirmation of the contract to which are annexed his general conditions, including a clause assigning juridiction.

1 Translated from the Italian.