scholarly journals UNFAIR TERMS IN CONSUMER CONTRACTS

2019 ◽  
pp. 67-70
Author(s):  
H. B. Yanovytska
Keyword(s):  
Good Faith ◽  
The European Union ◽  
National Legislation ◽  
Council Directive ◽  
Unfair Term ◽  
Provision Of Services ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
Contractual Rights ◽  
Exhaustive List

The article deals with the concepts and signs of unfair terms in contracts with the participation of consumers. National legislation contains a warning that the seller (performer, manufacturer) has no right to offer in the contract and include unfair terms. In the European Union, such relationships are governed by Council Directive 93/13/EEC of 5 April 1993 On Unfair Terms in Consumer Contracts,which is horizontal in scope and applies to contracts to which the consumer and the seller/supplier are parties. The Directive states that an unfair term is recognized as a condition of a contract that was not individually negotiated, if, for breach of the requirement of good faith, it causes significant discrepancies in the rights and obligations of the parties arising from the contract, to the detriment of the consumer. Unlike national legislation, the Directive contains an exhaustive list of unfair terms. For example,conditions having a purpose or intention: a) to exclude or limit the legal liability of the seller or supplier in the event of death or injury to the consumer because of the activity or inaction of such a seller or supplier. b) to conclude an agreement that will oblige the consumer, according to which the provision of services by the seller or supplier will depend on the personal desire of the latter. c) automatically extend the contract of the specified duration, when the consumer does not show the opposite desire, if the specified deadline for the expression of the consumer’s desire is unreasonably short, etc. Such a list of conditions that may be considered unfair is inexhaustible. A study of national legislation shows that unfair terms of the contract violate the principle of good faith and lead to a significant imbalance of contractual rights and obligations and cause harm to the consumer. The presence of these conditions is the basis for their recognition as invalid, and in some cases invalidation of the contract as a whole.

14. Unfair Terms in Consumer Contracts

Contract Law ◽  
2020 ◽  
pp. 444-471
Author(s):  
Ewan McKendrick
Keyword(s):  
Good Faith ◽  
Consumer Rights ◽  
Key Concepts ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The Individual ◽  
Work Done ◽  
Exhaustive List

This chapter focuses on Part 2 of the Consumer Rights Act 2015. The Act gives to the courts much broader powers to regulate terms in contracts which have been concluded between traders and consumers. Section 2 examines the individual sections of Part 2 of the Act and the leading cases decided under the Regulations which preceded the Act. Particular attention is given to key concepts such as ‘significant imbalance’, ‘good faith’, the exclusion of certain terms from assessment for fairness, the indicative and non-exhaustive list of terms that may be regarded as unfair, and the role of regulators in the enforcement of the legislation. Section 3 draws on work done by Professor Susan Bright in relation to the role of the Unfair Contract Terms Unit in the early days of the enforcement of the legislation.

scholarly journals Considerations on unfair terms in bank credit contracts

2020 ◽  
Vol 12 ◽  
pp. 101-112
Author(s):  
Roxana Chirieac
Keyword(s):  
Case Law ◽  
Bank Loans ◽  
Bank Credit ◽  
National Legislation ◽  
National Courts ◽  
Council Directive ◽  
European Court ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
Credit Contracts

Over the last few years, we have seen an increasingly number of case law that was presented before national courts as well as the European Court of Justice concerning unfair terms in bank credit contracts. This subject was raised especially during the crisis in which the swiss francs had appreciated, leading numerous customers that had previously taken bank loans in this currency unable to pay back loans that had risen in almost half their value. Development in international and national legislation, such as Law no. 193/2000 concerning unfair terms in contracts concluded between professionals and consumers, that transposed into our national legislation the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, both restricted or banned the use of such practices and were in force long before the crisis was generated. This however did not stop credit institutions from inserting these types of clauses in the contracts that they had concluded. The issue that we aim to treat in this article is whether the recent practices of credit and bank institutions has changed over the course of the last few years, given the development of jurisprudence that most often than not condemns abusive or unfair terms in credit agreements with consumers.

14. Unfair Terms in Consumer Contracts

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Good Faith ◽  
Consumer Rights ◽  
Key Concepts ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The Individual ◽  
Work Done ◽  
Exhaustive List

This chapter focuses on Part 2 of the Consumer Rights Act 2015. The Act gives to the courts much broader powers to regulate terms in contracts which have been concluded between traders and consumers. Section 2 examines the individual sections of Part 2 of the Act and the leading cases decided under the Regulations which preceded the Act. Particular attention is given to key concepts such as ‘significant imbalance’, ‘good faith’, the exclusion of certain terms from assessment for fairness, the indicative and non-exhaustive list of terms that may be regarded as unfair, and the role of regulators in the enforcement of the legislation. Section 3 draws on work done by Professor Susan Bright in relation to the role of the Unfair Contract Terms Unit in the early days of the enforcement of the legislation.

Intricacies of Significant Imbalance as the Cornerstone of Protection against Unfair Terms in Consumer Contracts under EU Law

2020 ◽  
Vol 82 ◽  
pp. 227-262
Author(s):  
Piotr Sitnik
Keyword(s):  
Good Faith ◽  
Consumer Contract ◽  
National Courts ◽  
Council Directive ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The One ◽  
Administrative Proceedings ◽  
Professional Traders ◽  
The Eu

Significant imbalance in the rights and obligations of the parties to a consumer contract term is, together with good faith, a fundamental pillar of substantive protection against unfair terms. It is the primary tool provided by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts with a view to mitigating differences in bargaining power between professional traders and consumer on the ever-expanding capitalistic market within the EU. The paper comprehensively reviews the meaning of the “significant imbalance” element by reference to a cross-section of judgments handed by the CJEU and Polish courts. Generally, albeit with a few notable exceptions, the former court has engaged in a subjective-objective exercise aimed at discovering what the balance of rights and obligations would have been between the parties in the particular dispute at hand had it not been for the purportedly unfair clause. Besides that, the requirement has been utilized to impose ad bolster a host of information duties levied on traders so that protection is extended to cases where the consumer is unaware of their rights or are deterred from enforcing them due to procedural obstacles or prohibitive costs of judicial or administrative proceedings. The requirement of significant balance, rooted in the idea that the disproportion of market power between the parties to a disputed term necessitates government or judicial intervention to achieve or restore contractual equilibrium, is shown from a plethora of angles: its ideological foundations, practical connotations, its emphasis on consumer vulnerability and approach to economic power. Assistance and inspiration re gleaned from Polish jurisprudence where numerous questions either unanswered by the CJEU or left to the consideration of national courts, particularly the relation between reasonableness, on the one hand, and significant imbalance and good faith on the other, as well as between significant imbalance and good faith, have been tackled.

EVOLUTION OR REVOLUTION? UNFAIR TERMS IN CONSUMER CONTRACTS

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52 ◽  
Author(s):  
Catharine MacMillan
Keyword(s):  
Director General ◽  
Fair Trading ◽  
Council Directive ◽  
House Of Lords ◽  
Unfair Term ◽  
Injunctive Relief ◽  
Contractual Term ◽  
Consumer Contracts ◽  
National Bank ◽  
Unfair Terms

DIRECTORGeneral of Fair Trading v. First National Bank plc [2001] 1 UKHL 52, [2001] 3 W.L.R. 1297 marks the beginning of an evolution in the common law of contract. The House of Lords considered for the first time whether a contractual term was an unfair term under the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159 (which implemented Council Directive (EEC) 93/13, now implemented by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083). The case arose when the Director General sought injunctive relief, pursuant to regulation 8(2), to restrain the use of a contractual term.

scholarly journals ECONOMIC CONSIDERATIONS AS A FACET OF SUBSTANTIVE UNFAIRNESS OF CONSUMER CONTRACT TERMS IN THE PRACTICE OF POLISH COURTS

2019 ◽  
Vol 34 (3) ◽  
Author(s):  
Piotr Sitnik
Keyword(s):  
Legal Analysis ◽  
The European Union ◽  
Consumer Contract ◽  
European Regulation ◽  
Council Directive ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The One ◽  
Exercise Of Discretion ◽  
Economic Considerations

It is trite law and a common cliché reiterated in the judgments of the Court of Justice of the European Union that the economic situation of a consumer subjected to a purportedly unfair consumer contract clause is generally impertinent. This general tenet of the European regulation of unfair terms in consumer contractsis borne out particularly by Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, under which assessment of the unfair nature of a term shall not encompass an inquiry into the adequacy of the price and remuneration, on the one hand, as against the services or goodssupplies in exchange, on the other, in so far as these terms are in plain intelligible language. Despite this seemingly bold orientation towards the formal side of the unfairness assessment, efforts have been made to inject into the judicial exercise of discretion a degree of consideration of the economic standing and interests of both the consumer and the trader involved in the particular dispute at hand. This has been done primarily by reference to the “significant imbalance” requirement pursuant to Article 3(1) of the Directive. The paper reviews an extensive crosssection of judgments handed down in Polish courts based upon the Polish transposition of the Unfair Terms Directive to show that the courts have on numerous occasions ventured outside the boundaries delineated by traditional legal analysis (even beyond the flexible bounds of purposive interpretation) to scrutinize the size and gravity of the economic burden the term under scrutiny is liable to impose upon the consumer relative to its economic strength on the market.

scholarly journals Review of the New Polish Model of Abstract Control of Standard Forms of Agreements Concluded with Consumers

2016 ◽  
Vol 9 (14) ◽  
pp. 247-264
Author(s):  
Paulina Korycińska-Rządca
Keyword(s):  
Consumer Protection ◽  
Effective Means ◽  
Substantial Part ◽  
New Model ◽  
Legal Rules ◽  
Council Directive ◽  
Consumer Contracts ◽  
Court Proceedings ◽  
Unfair Terms ◽  
Administrative Proceedings

The Polish Act of 5 August 2015 amending the Act on Competition and Consumer Protection and certain other acts introduced several changes intended to strengthen consumer protection. Its substantial part concerns the abstract control of standard forms of agreements concluded with consumers. The Amendment Act of 2015 has completely changed the previous model of abstract control of standard forms of agreements concluded with consumers by replacing the court proceedings model with the administrative proceedings model. This article presents an analysis of Polish legal rules on the abstract control of standard forms of agreements concluded with consumers as amended by the Amendment Act of 2015. Its purpose is to verify whether the new Polish model may be deemed as an appropriate and effective means of preventing the continued use of unfair terms, within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. The paper analyses the legal rules on the new model of abstract control of standard forms of agreements concluded with consumers (the administrative proceedings model) and compares the new model with its predecessor (the court proceedings model). The paper does not cover the remaining changes introduced into the Polish Competition Act of 2007 by the Amendment Act of 2015, which are not connected to abstract control of standard forms of agreements concluded with consumers.

The Regulation of Unfair Terms and Consumer Protection in Japan

2020 ◽  
pp. 186-206
Author(s):  
Hiroyuki KIHARA
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Japanese contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Japanese courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Japanese courts regulate unfair contract terms in practice.

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