Are the Freight Forwarders' Standard Terms and Conditions (ADSp) 2017 automatically included in transport contacts? The Heidelberg Regional Court considered this question in its decision of 13 August 2019.(1)
The parties were in dispute about the payment of claims for freight forwarding charges, which the plaintiff, a forwarding company, wanted the defendant, an industrial company, to pay.
The defendant refused payment out of court. It claimed that it had suffered damages as a result of the plaintiff's misconduct and set off these claims for damages against the claim. The plaintiff opined that the ADSp 2017 were included in its contract with the defendant. According to Clause 19 of the ADSp 2017, a set off against a claim for payment is excluded. The defendant denied that the ADSp 2017 were included in the contract. The defendant also argued that a prohibition on set off could not be derived from Clause 19 of the ADSp 2017, which reads as follows:
Offsetting or retention against claims arising from the transport contract and related non-contractual claims is only permissible if the counterclaim is due, undisputed, ready for decision or legally established.
The action was successful. The ADSp 2017 were effectively included in the transport contract, and a set off by the defendant was excluded under Clause 19 thereof.
The ADSp 2017 are general terms and conditions which are customary in the industry and become part of a contract even without specific reference being made thereto.(2)
Clause 19 of the ADSp 2017 aims to protect the user from unjustified set offs. This purpose would be contradicted if a party limited itself to the clause's wording and the criterion of the due date of the counterclaim, which cannot be influenced by the user.
Since the defendant had defended itself only with the declared set off against the claim, the claim was deemed to be undisputed and the action was upheld.
The ADSp 2017 are still quite new, but the list of associations which were involved in their negotiations and now recommend them is significantly larger than for the ADSp 2003. However, whether this alone is sufficient to affirm a comprehensive inclusion of the entire ADSp 2017 in a transport contract is doubtful.
The regional court did not address the legal requirements of Articles 449(2) and 466(2) of the Commercial Code (if a party wants to deviate from basic legal liability). Based on this stipulation, users of the ADSp 2017 must refer to the liability stipulations thereof (eg, "We work exclusively on the basis of the ADSp 2017, latest version. As a precautionary measure, we refer to the liability regulations in Sections 22 to 25 of the ADSp 2017, which deviate from the statutory basic liability").
Arguably, this did not come into play for the regional court in this case, and the need to refer to the liability regulation in a suitable manner says nothing about the effective inclusion of other clauses. However, such an artificial splitting of the uniform set of conditions of the ADSp 2017 is questionable.
Endnotes
(1) Heidelberg Regional Court, 13 August 2019, File 11 O 48/17 KfH.
(2) See the Federal Court of Justice judgment of 10 October 1985, I ZR 124/83.
