The General Terms were so unusual and onerous that they were not considered agreed.
The dispute revolved around how the carrier had breached the agreement and whether he should pay a penalty and compensation.
The main question in the case was whether the fine provisions of the general terms and conditions of the client were agreed. The court should also rule on whether the principal was entitled to compensation for withholding the goods.
Nano Trans, a Polish forwarding and transport company, entered into five separate agreements with the Danish transporter NTG East for the transport of general general cargo from the Kronoflooring company in Germany to various Bauhaus stores in Denmark.
The agreements were entered into on the basis of the contract of the parties via the Internet freight exchange, where only the basic details of the transport were mentioned. Nano Trans sent the agreement to NTG East, who were given half an hour to sign.
The five agreements were drawn up by Nano Transport and based on their general conditions. Among other things, the conditions state: In the event of actions with negative consequences for the interests, honor and reputation of the client, we reserve the right to compensation of EUR 50,000, and in the case of disloyal competition, which involves contact with the client’s customer, we are entitled to do so entitles the contractor to impose a fine of EUR 25,000. The general conditions also stipulated a fine of EUR 100 if the carrier delivered the original documents too late and EUR 500 for contracting with other carriers without the client’s permission.
NTG East carried out five shipments for Nano, which subsequently demanded fines for delays in the original documents, used by other carriers without authorization and for contact with the client’s customers.
The allegations of the plaintiff and the defendant
Nano Trans claimed that NTG East should pay EUR 86,000. NTG East claimed acquittal.
The decision of the Maritime and Commercial Court
NTG East was acquitted of the fine by the Maritime and Commercial Court. The court found that Nano Trans’s General Terms and Conditions were so unusual and onerous that they needed special emphasis to NTG East to be deemed agreed between the parties.
With respect to NTG East’s retention of the goods, the Maritime and Commercial Court ruled that the retention was unjustified and that NTG East was liable for Nano Trans’s loss. However, the court did not find that Nano Trans had documented its loss and therefore acquitted NTG East of the claim for compensation.
It is important to note that the Maritime and Commercial Court emphasized that the unusual and burdensome conditions were not particularly emphasized in the agreement and based on the agreement.
So it wasn’t the unusual conditions per se, but the fact that these were not emphasized with the special circumstances.
Based on this, it is considered likely that the Maritime and Commercial Court would have reached a conviction if the conditions had been particularly emphasized.
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