Abstract
Abstract Not all contract terms pose the same perils for efficient contracting and for consumer welfare. EU Law and the laws of many Member States make a distinction between core and non-core contract terms and tend to exempt the former from the ex-post substantive unfairness review to which the latter are subject to. By reviewing how the CJEU and European legal commentators have justified and construed the terms of Art. 4(2) of Directive 93/13 we may obtain a general picture of the analytical underpinnings deployed to provide useful content to that provision. The prevailing European approach is (unsurprisingly, perhaps) predominantly legalistic and uninterested in empirics. The CJEU analysis remains (unsurprisingly, perhaps) immune to the implications from the theoretical and empirical literature that economics and Law & Economics has produced in order to understand how market forces and other non-legal incentives for contract quality interact with ex post controls implemented by courts and based on broad legal standards. The ALI Restatement on Consumer Contracts may cogently make use of that input in crafting a less formalistic legal regime.
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