Keywords

Summary



Keywords

1 Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction over consumer contracts - `Sale of goods on instalment credit terms' - Contract for the manufacture of goods for a price payable in several instalments before the goods are transferred to the purchaser - Excluded - Contract for the supply of services or goods

(Convention of 27 September 1968, Art. 13, first para., points 1 and 3, as amended by the Accession Convention of 1978)

2 Convention on Jurisdiction and the Enforcement of Judgments - Enforcement - `Provisional measure' ordering interim payment - Excluded - Conditions

(Convention of 27 September 1968, Art. 24, Title III)

3 Convention on Jurisdiction and the Enforcement of Judgments - Prorogation of jurisdiction - Interim proceedings designed to obtain provisional or protective measures - Appearance by the defendant - Effects

(Convention of 27 September 1968, Arts 18 and 24)

Summary

1 In the area of consumer contracts, Article 13, first paragraph, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be construed as not applying to a contract between two parties having the following characteristics, that is to say, a contract:

- relating to the manufacture by the first contracting party of goods corresponding to a standard model, to which certain alterations have been made;

- by which the first contracting party has undertaken to transfer the property in those goods to the second contracting party, who has undertaken, by way of consideration, to pay the price in several instalments; and

- in which provision is made for the final instalment to be paid before possession of the goods is transferred definitively to the second contracting party.

That provision is intended to protect the purchaser only where the vendor has granted him credit, that is to say, where the vendor has transferred to the purchaser possession of the goods in question before the purchaser has paid the full price. A contract having the characteristics mentioned above is, however, to be classified as a contract for the supply of services or of goods within the meaning of Article 13, first paragraph, point 3, of the Convention.

2 A judgment cannot be the subject of an enforcement order under Title III of the Convention of 27 September 1968 in a case where

- it was delivered at the end of proceedings which were not, by their very nature, proceedings as to substance, but summary proceedings for the granting of interim measures;

- the defendant was not domiciled in the Contracting State of the court of origin and it does not appear from the judgment that, for other reasons, that court had jurisdiction under the Convention as to the substance of the matter;

- it does not contain any statement of reasons designed to establish the jurisdiction of the court of origin as to the substance of the matter

and

- it is limited to ordering the payment of a contractual consideration, without, on the one hand, repayment to the defendant of the sum awarded being guaranteed if the plaintiff is unsuccessful as regards the substance of his claim or, on the other, the measure sought relating only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made.

In such a case, the court to which application for enforcement is made must conclude that the measure ordered is not a provisional measure within the meaning of Article 24 of the Convention.

3 The fact that the defendant appears before the court dealing with interim measures in the context of fast procedures intended to grant provisional or protective measures in case of urgency and which do not prejudice the examination of the substance cannot, by itself, suffice to confer on that court, by virtue of Article 18 of the Convention of 27 September 1968, unlimited jurisdiction to order any provisional or protective measure which the court might consider appropriate if it had jurisdiction under the Convention as to the substance of the matter.