Chapter 13: Protected Contracts
INTRODUCTION With a view to protecting weaker parties, special choice of law rules are laid down for consumer and employment contracts by Articles 5 and 6 of the Rome Convention, and for insurance contracts by EC Directives 88/357 and 90/619. CONSUMER CONTRACTS Scope Article 5 of the Rome Convention lays down special conflict rules for certain consumer contracts which satisfy an elaborate definition containing both substantive and territorial elements. The definition in many respects resembles that used in Article 13 of the Brussels Convention (now replaced by Article 15 of the Brussels I Regulation),1 and the European Court has indicated in Gabriel 2 that concepts used in both definitions will be given the same interpretation. The contracts which fall within the scope of Article 5 may conveniently be referred to as protected consumer contracts. As regards substantive elements, Article 5(1) requires that the contract must be one whose object is the supply of goods or services to a person for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that object. This implies that the supplier must be, or at least appear to the consumer to be, acting in the course of his trade or profession.3 Moreover the purchaser must not be acting for business purposes; or, where he is acting partly for business purposes and partly for non-business purposes, his business purpose must be of negligible importance in relation to the transaction; and in...
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