Consumers as Unassisted Minors: Asymmetrical Sanction for Unfair Contract Terms

Abstract

The consumer distance contract regulated within the European Union was compared to the Roman law solution known by its medieval name as negotium claudicans, thus to the contract with unassisted pupilli (children under the age of puberty, i.e., minors). This article builds on this comparison and applies it to yet another EU directive which follows even more closely the idea to interfere with the binding nature of contractual terms. The recent case law of the CJEU regarding the sanction enclosed in the Article 6(1) of Directive 93/13/EEC, its implementation into national laws, and the standpoints of various legal doctrines especially in Polish law inspire to ask about the nature of sanction for unfair contract terms and its importance for the modern discussion on the typology of nullity. The paper tries to answer these questions by marrying solutions applied in different times and contexts. It compares the EU sanction with the Roman law of contracts with unassisted minors and with its legacy in European and South African law. Both examples, according to us, are related by the similar nature of the sanctions which bear strikingly similar characteristics: they are asymmetrical and escape the modern typologies of nullity.