3.

I shall begin by assessing the position and function of Articles 13 to 15 (that is to say, Section 4 of Title II, composed precisely of those three articles) in the general system of the Convention. It is clear, in the first place, that the rule as to jurisdiction contained in Article 14 is in the nature of a special rule; it is sufficient to consider its content in relation to other articles of the Convention which are of wider scope. The first paragraph of the provision in question allows a seller on instalment credit terms to be sued in the courts of the State in which the buyer is domiciled, as well as in the place where the seller is domiciled, by way of exception from the general rule contained in Article 2. However, where the seller is suing the buyer proceedings may be brought, pursuant to the second paragraph of Article 14, only in the courts of the State in which the defendant is domiciled; that provision is in accordance with the criterion contained in Article 2 but excludes the application of other provisions, such as Article 5 (1) concerning jurisdiction in matters relating to contract and Article 6 (1) on the eventuality of a number of defendants. The special nature of Article 14 is, furthermore, confirmed by the limitations which Article 15 places on the possibility of a change of jurisdiction by agreement between the parties. This first conclusion must incline the interpreter to caution in determining the meaning of Articles 13 to 15; it is accepted that provisions creating exceptions are to be interpreted strictly. That caution should consist in the choice of an interpretation which to the greatest extent takes account of the ratio of Section 4 of Titel II, and gives the provisions therein contained a sphere of application exactly corresponding to that ration d'être. Concerning the ratio of Articles 13 to 15 there is no doubt; those provisions are designed to protect the weaker contracting party, that is, the purchaser in the case of the sale of goods on instalment credit terms and the borrower in the case of loans repayable by instalments expressly made to finance the sale of such goods. That appears clearly from the fact that the first paragraph of Article 14 permits such persons to choose between two jurisdictions, in order to bring proceedings against the seller or the lender, whereas in the second paragraph, which is concerned with the case of proceedings brought by the seller against the buyer or by the lender against the borrower, the general rule contained in Article 2 is confirmed and rendered exclusive. It should, moreover, be borne in mind that the report on the Convention — the so-called Jenard Report — perceives in the desire to protect certain categories of persons — buyers and borrowers — the central motivation of the provisions of Section 4 (in the same vein, cf. Weser, Convention Communautaire sur la Competence Judiciaire et l'Execution des Decisions, Brussels, 1975, p. 291). At this point, the interpretation of the concept ‘sale on instalment credit terms’ contained in Article 13 of the Convention cannot be undertaken without having regard to two criteria which emerge from the conclusions drawn so far: (a) a restrictive interpretation is to be preferred to a wider one; (b) the contract in question must have as its essential characteristic the fact that the parties are not on an equal footing in economic terms: the contract was entered into by a ‘weak’ party and a ‘strong’ party. In connexion with criterion (a), the sale on instalment credit terms cannot be identified for the purposes of the Convention solely on the basis of the means of payment, in the sense that any contract of sale in which settlement of the price is undertaken by two or more payments may be said to be a ‘sale on instalment credit terms’, in disregard of any other subjective or objective factors. I therefore believe that the Court should dismiss the arguments of Bertrand, claiming that the Community definition must be sufficiently wide to include the definitions contained in all the national Laws; this would lead to the result that the term ‘sale on instalment credit terms’ would have to be understood to refer to any credit sale in which the price is paid in successive amounts. On the other hand, in pursuance of criterion (b), we must move towards a concept of sale on instalment credit terms which is characterized typically by the economic inferiority of the buyer, such that it may be said that the latter was induced to purchase by the system of payment by instalments, in so far as payment in a lump sum would have been the cause of economic difficulties for him. In this connexion I would agree with the observation made in these proceedings by the Government of the United Kingdom, when it noted that it is illogical to regard all buyers who arrange for payment on deferred terms as being in need of protection, and that it is more sensible to speak of consumer protection. Indeed, the only method of identifying a category of buyers who may be said to be typically in a position of economic inferiority is to direct attention to the category of consumers, the protection of whom, as is well known, presents a general problem in Community law as well as in many national laws. Thus it is that the conclusions drawn with regard to the rôle of Articles 13 to 15 in the general system of the Brussels Convention lead to an interpretation of the concept of sale on instalment credit terms as a sale by a commercial undertaking (whether in production or marketing) to a consumer — and therefore as a sale of consumer goods — in respect of which payment is spread over a certain number of successive amounts.