Consumer Legislation Research Articles

Los criptoactivos frente al smart contract

ICTs have influenced the contract from different angles. One of them is in their enforcement, by implementing a new way of executing them through so-called smart contracts. Their most common use is found in the trading of cryptocurrencies and tokens such as NFTs. This technology consists of a computer program that enables automatic contract execution. However, they raise the issue of their validity, which must be resolved based on the category of contract to which it applies. Their implementation affects the duty of information, and must ensure consumer's right to revoke acceptance, provided for in consumer legislation.

Consumer Challenges of the Socio-Economically Disadvantaged in South Africa and the Role of Consumer Legislation

Consumer Challenges of the Socio-Economically Disadvantaged in South Africa and the Role of Consumer Legislation

Rethinking non-conformity of a serious nature: From the CISG and the PICC’s concept of fundamental breach towards a Nachfrist principle—learning from the amendments to Catalan sales law’s cure regime

Abstract Whereas the European Commission’s endeavours to codify European contract law are at an impasse, the harmonization effect of European Union (EU) Directive 2019/771 should not be under-estimated. Such effect extends beyond consumer legislation and is particularly remarkable in EU jurisdictions that did not enact ad hoc consumer acts. This article takes the amendments to Catalan sales law after the transposition of Article 13 of the Directive as a benchmark. It delves into the recently introduced seriousness threshold under Article 13(4) lit. (c) of the Directive as an additional basis for contract avoidance in case of the delivery of non-conforming goods. The article further discusses whether such a serious nature threshold should (or can) coexist with the previous notion of fundamental breach and rethinks the contours of these legal thresholds from a cure perspective.

News in legislation about the protection of the rights of contents

The paper analyzes the New Edition of the Law of Ukraine "On the Protection of Consumer Rights" No. 3153-IX dated June 10, 2023. Based on the results of the analysis, the author outlined the main positive trends in bringing the legal norms of the new Ukrainian Law closer to the acts of European consumer law, in particular food products were returned to the sphere of consumer legislation; the terminology has been approximated, the concept of a significant drawback has been eliminated; consumers was given the right to exchange the product under warranty for the same or similar product; the declarative practice was eliminated when most of the violations of consumer rights did not involve any responsibility, the need for consumer policy was determined, and the main subjects of the consumer rights protection system were outlined. However, on certain issues, in the new edition, the practice of promoting provisions that directly contradict or distort the provisions of European law has been continued. In particular, it was established that the mention of the constitutional right of consumers to the protection of their rights by the state, as well as the basic right of consumers to product safety, was removed from the new edition of the Law. The paper substantiates the fallacy of the decision regarding the removal of the reference to the extension of the Law to consumers of financial services, as well as the norm regarding the need for business entities to create an exchange fund for goods, and the norm regarding the application of penalties. It has also been established that there are certain shortcomings in defining the essence of the consumer rights protection system and its subjects, in the name of the national body responsible for the implementation of the policy in the sphere of consumer rights protection. According to the results of the analysis, proposals were made to eliminate the identified shortcomings.

Consumer Vulnerability, Digital Fairness, and the European Rules on Unfair Contract Terms: What Can Be Learnt from the Case Law Against TikTok and Meta?

Directive 1993/13/EEC on unfair contract terms (UCTD) is one of the oldest pieces of European consumer legislation, formulated before the development of the Internet as the leading marketplace, and still in force, with no major changes since its adoption. As the most significant piece of consumer legislation not substantially amended following the consumer law Fitness Check that resulted in the adoption of Directive 2019/2161/EU, it is questionable whether the UCTD remains fit for purpose in regulating the terms and conditions in the user agreements and policies of social media platforms to address the existence of the social platform related digital vulnerabilities of consumers. This paper assesses the potential and limits of data-based reforms to the UCTD, in procedural notification requirements and substantive unfair terms controls, before demonstrating how the UCTD could be brought up-to-date while preserving commercial certainty and avoiding dramatic changes. This could be done simply by mandating measures that are already being taken, either by social media platforms themselves or by other major tech companies, and by elaborating existing requirements with standards that are analogous to other already-existing consumer rights. The assessment of the real unfair-terms problems highlighted by regulatory actions around the world against two major traders, TikTok and Meta (including Facebook and WhatsApp), may illustrate well the inadequacies in the minimum protections currently afforded by the UCTD.

К вопросу о реформировании потребительского законодательства

Introduction. Modern consumer legislation is influenced by informatization, sanction pressure, economic and political transformations. There is a need to reform consumer legislation, to exclude ineffective norms from it. The introduction of new mechanisms for the realization of consumer rights, including the right to education, is required. Materials and Methods. The research is based on the analysis of regulatory legal acts, doctrinal approaches and judicial practice in the field of consumer protection. Analysis. The conducted analysis showed insignificant involvement of local self-government bodies, public organizations created for the purpose of consumer rights protection in the implementation of the consumer right to education. The lack of awareness of consumers about the possibility of presenting a number of requirements stipulated by the current legislation significantly narrows the possibilities of their protection. Results. The authors come to the conclusion that consumer legislation is expected to be fundamentally reformed, despite selective changes to which it has been subjected in recent years, up to the adoption of a codified act. It is proposed to legislate the obligation of local self-government bodies to develop and implement municipal consumer protection programs with mandatory inclusion of educational activities in them. It is also recommended to more actively involve public organizations for the protection of consumer rights and volunteers to explain to consumers the rights, the proper realization of which is possible only in the case of active behavior of consumers themselves and their presentation of relevant requirements to their counterparties. In addition, in order to strengthen the degree of protection of the modern consumer, the authors propose to amend paragraph 2 of Article 20, subparagraph 4 in paragraph 1 of Article 21 and paragraph 4 of Article 24 of the Law of the Russian Federation “On Consumer Protection”.

Conceptual framework and system of the Model law of the Commonwealth of Independent States “On Protection of Consumers”

The article substantiates the need to improve the model consumer legislation of the member states of the Commonwealth of Independent States (CIS), which has become brewing in connection with fundamental transformational changes in social life, development of electronic commerce, the development of new standards upon sale of goods, works, services to consumers. The paper draws attention to the differences in processes of approximation (harmonisation) of the national legislations of the EU member states and approximation of laws of the CIS member states, notes the specifics of international cooperation within the CIS. Before proceeding to the presentation of one of the possible alternate for improving the CIS model law on protection of consumers, authors analyze the state of modern legal regulation in the European Union, solitary states of the Western Europe, the CIS member states. As a result, it is concluded that it is possible to take into account the achievements of foreign lawmaking in the development of regulatory decisions in a number of areas of consumer protection: extension of scope of consumer’s legislation, formulating additional guarantees for protecting consumer rights in the field of e-commerce, developing a system of cross-border consumer’s disputes, and others. The structure of the act of consumer’s legislation proposed by the authors is based on the focus of the Russian Federation on the codification of consumer’s legislation, as well as on the modern needs for a uniform complex normative legal act that conflate both general issues of regulation of consumer’s relations and special provisions relating to the protection of consumer rights in certain areas of social relations (electronic commerce, sale of food, pharmaceutical products, housing and communal services, tourism services) or consumers belonging to socially vulnerable groups of the population (minors, the elderly, the disabled).

The Unreliability of Online Review Mechanisms

Online reviews have an undeniable impact on the market and are an important source of consumer information. From a legal perspective, online reviews actively influence consumers’ decisions to enter into a contract. Moreover, online reviews convey pre-contractual information that consumers find relevant and easy to understand, unlike the pre-contractual information disclosed as a result of EU law–based information duties. From this perspective, online reviews could potentially be seen as a complement of the flawed EU law–based information paradigm and regulatory improvement options based on reviews could be explored. However, the unreliability of online reviews is an obstacle that haunts consumers, practitioners, regulators, and academics alike. This unreliability has previously been identified as a reason not to award online reviews a more significant role in the EU law–based regulatory framework of pre-contractual information in consumer contracts. This paper explores the merits of this argument by discussing how the unreliability of online reviews is currently regulated. This paper takes a broad perspective on regulation, focusing not only on EU consumer legislation, but also looking at standardization, soft law, self-regulation, and the role of national consumer authorities. Overall, this paper argues that there are sufficient measures in place to shift the debate from the unreliability of reviews to reviews’ potential role in the protection of consumer informational interests.

Turkey: Amendment in Consumer Legislation concerning Turkish Online Marketplaces

Turkey: Amendment in Consumer Legislation concerning Turkish Online Marketplaces

Transnational Consumer Protection in E-Commerce

This article deals with the protection of consumers when they enter e-commerce transactions with foreign companies. Most states reacted to the growing importance of e-commerce by enacting data protection and consumer protection legislation and by requiring registration of e-businesses. Companies have found a way to circumvent the consumer legislation by offering the consumers to agree to a choice of foreign courts and laws which are included in their terms and conditions. Consumers give away the protection of their home state simply by clicking to accept the general terms and conditions on the company’s website. The purpose of this article is to examine if the solutions and the experience from the United States and the European Union could serve as a model for transnational protection of consumers in e-commerce. The authors discuss the different levels of protection offered in the United States and the European Union and consider unification of the standards by a multilateral convention.

Parol evidence and the Consumer Protection Act 68 of 2008

The conflict between the objectives of the Consumer Protection Act 68 of 2008 – to protect consumers and ensure accessible and transparent redress – and the purpose of the parol evidence rule – to exclude extrinsic evidence and observe the maxim pact servanda sunt ‒ is evident and forms the basis of this article. The purpose of consumer protection legislation is to balance the rights of consumers and suppliers, to protect the interests of consumers and to ensure efficient redress for consumers who have been wronged. The parol evidence rule, which is still in effect in South Africa, prohibits extrinsic evidence in a dispute to interpret a written agreement between parties to ensure certainty on the terms and conditions agreed to in writing. In practice, the parol evidence rule can disadvantage consumers who enter into standard-form contracts, as they normally are in an inferior bargaining position and cannot negotiate the individual terms and conditions of consumer agreements. It is obvious that the strict enforcement of the parol evidence rule in consumer agreements could lead to unjust results in consumer disputes. The provisions of the Consumer Protection Act 68 of 2008 are discussed to establish the extent of the limitation of the parol evidence rule therein. Then, the Consumer Rights Act, 2015 in the United Kingdom is considered to establish the tendency to limit the application of the rule in foreign consumer legislation, and to compare that to the position in South Africa. This article discusses whether the restriction or limitation of the parol evidence rule in the Consumer Protection Act is efficient in reaching the aims and objectives of the Act.

Fundamentals of ophthalmic dispensing 18: Law and regulation – part 1

The sale of optical appliances is governed partly by ordinary consumer legislation and specifically through the Opticians Act and the various orders of the General Optical Council. Here Tina Arbon Black and Peter Black take a look at the legislation, regulations and standards that apply to ophthalmic dispensing.

Потребительский аспект образовательных правоотношений

Purpose. Research of problems arising in law enforcement practice for the protection of the rights of consumers of educational services. Differentiation of judicial and other ways of protecting educational rights. The correlation of the standards for educational and consumer legislation in resolving disputes on protection of rights of consumers of educational services. Methodology: dialectics, analysis, synthesis, induction and deduction, formal legal method. Conclusions. The legislation on consumer protection applies exclusively to educational services provided on the basis of full reimbursement of training costs, i.e. under the appropriate commutative contracts for the provision of educational services. In order to apply measures to protect the rights of a consumer acting in good faith, it is necessary in each case to establish the scope of service provision in comparison with the degree course scheme. Consumer demands for a significant reduction in the cost of paid educational services in the absence of real grounds are a manifestation of «consumer extremism». Scientific and practical significance. The results obtained in this article can be used in further research to solve the problem, in scientific and pedagogical activities, and in law enforcement activities of bodies dealing with specific disputes. These provisions can also be useful to consumers, since the correct choice of the procedure and method of protection accelerates the achievement of the goal of protecting the violated right.

REGULATORY SUPPORT OF THE RIGHTS OF ATHLETES IN THE IMPLEMENTATION OF TRANSPORTATION

The article is devoted to topical issues of ensuring the rights of passengers-athletes in the implementation of their transportation under the contract of carriage of passengers (in civil relations) and the implementation of transportation by official transport. The purpose of the article is to determine the state of regulations on the rights of athletes as passengers, compliance of the legal protection with the needs of ensuring their rights, development of theoretical proposals, and practical recommendations for improving existing legislation in the field. It is proved that the nature, features, and content of regulatory rights of passenger-athletes is determined by the nature of legal relations, their content and the nature of legal relations between the participants, the peculiarities of the legal regulation of these relations. It is specified that the current legislation does not contain regulatory guarantees for the rights of passenger-athletes, except in cases where the passenger-athlete is a party to the contract of carriage of passengers. It is proved that the legal status of the athlete does not affect the specifics of the conclusion and execution of the contract of carriage of a passenger, which can be concluded by him alone or by the club, committee, organization, etc. in its interests (as a contract for the performance of a third party) with the carrier. It is established that in such relations the rights of the passenger-athlete are provided by the general guarantees provided by the Central Committee of Ukraine and special, specified, and fixed acts of the transport and consumer legislation. When transporting passengers-athletes by official transport (in particular, in labor relations), their rights are ensured by the content of the norms of Chapter 82 of the Civil Code of Ukraine, which apply to cases of injury to the passenger by injury, other health damage or death.

Institucionalni okvir kolektivne zaštite potrošača u Republici Srbiji - stanje i perspektive

The paper presents the system for protection of consumers' collective interests in the Republic of Serbia and its development perspectives. The paper relies on certain results of the research conducted at the Union University School of Law, as well as on specific comparative legal approaches. The Law on Consumer Protection introduced an administrative procedure for collective consumer protection. Contended arguments in favour of that change were efficiency and low costs of administrative procedure. In practice, administrative protection has proven to be more effective than judicial protection, but the effect of deterring traders from actions that violate consumer rights has not been fully achieved. In that sense, the existing system of protection of consumers' collective interests in Serbia can be improved by modifying certain administrative measures and by introducing specific forms of alternative dispute resolution in Serbian consumer legislation. The novelties brought by the Directive on Representative actions, whose adoption can be expected very soon, have also been presented in the paper.

THE LEGAL NATURE OF ”PRE-CONTRACTUL OBLIGATIONS”:CONDITIONS OF VALIDITY IN THE CONSUMER CONTRACT

This paper aims to briefly analyze the legal nature of “the pre-contractual obligations” regarding the information, counselling and safety elements that are specific to the consumer legislation. From the perspective of consumerist regulations, “the pre-contractual obligations” occur during the formation of the contract stage although in the civil contract the obligations of the parties designate the effects of the contract. In these circumstances, the following question arises: are “the pre-contractual obligations” laid down in the Consumer Code conditions of validity or effects (obligations) of the contract? This dispute is a part of the harmonization process of the institutions that are specific to the legislation of consumption with those of the contract as laid down in the Civil Code (the ordinary law in the matter). The paper is structured in four parts: “Introduction”, “The Stages of the Civil Contract: the Conditions of Validity, Conclusion, Effects and Termination”, “The Pre-Contractual Obligations as Laid Down in the Consumer Code” and “The Legal Character of the Pre-Contractual Obligations.” This legal undertaking ends with conclusions.

To Whom Does Australian Corporate and Consumer Legislation Speak?

Is it feasible for regulation (and particularly legislation) effectively to communicate to the participants the rights, duties, processes, and procedures that embody the regulatory goals upon which they are meant to act. Looking at attempts in Australia to implement this regulatory strategy in the fields of corporate law andconsumer law, this article suggests that a more profound change would need to occur in the form and style of Australian legislation before such an approach is viable.

Communicating Legal Information to Online Customers Transparently: A Multidisciplinary Multistakeholderist Perspective

Transparency has occupied a central place in the marketing management literature since the early 2000s, and its rise relates closely to the paradigm shift in corporate marketing, from consumer seduction to consumer engagement. In this paper we address the concept of transparency from the perspectives of law, communication science, and corporate marketing. Given that it is unclear how transparency can be achieved in practice, we conducted a qualitative empirical investigation among stakeholders of the transparency of legal information written by businesses for consumers, which has been an essential part of EU consumer legislation since the 1990s, with a view to further refining and concretizing this concept. We carried out 75 interviews with stakeholders in Germany, the largest national consumer market in the European Union. The results reveal the principles and benefits of transparent online consumer information according to these stakeholders and provide guidance for businesses and marketing professionals who wish to improve the clarity and accessibility of their online disclosures. The study concludes with an annotated, actionable definition of the transparency concept in corporate marketing.

О необходимости совершенствования понятия «недобросовестная конкуренция»

The main legally significant features of the legal concept of “unfair competition”are considered. It is one of the forms of abuse of law, which is expressed in the illegal behavior of the subject of market relations, which by means of forms of implementation of its subjective right that are not permitted by law or contraryto business customs, creates obstacles in the exercise of its competitors ‘ business rights and (or) harms consumers. There is no consumer figure in the definition of unfair competition. If the damage is caused to them, their rights are protected by consumer legislation. Currently, there is no unified concept of “unfair competition”. In legal science and legislation, there are definitions of unfair competition, but having a common meaning, their interpretations differ significantly, generating, in turn, not only disputes in the ranks of the scientific community, but also having a significant impact on law enforcement practice. The integrity of an economic entity is manifested primarily in its lawful behavior, but when implementing civil rights in the field of competition, law enforcement officers must understand the essence and take into account each feature contained in the above concept, since, otherwise, mistakes may be made in the implementation of rights, obligations and prohibitions in the field of competitive relations in the market of goods and services. At the same time, attention is drawn to the imperfection of the legal concept, which leads to a narrowing of the scope of relations arising in the course of violation of competition rules. The latter is a circumstance that reduces the effectiveness of competition protection in the Russian Federation. In order to eliminate the identified gaps, it is proposed to make a number of changes to the competition protection legislation.

GREENING OF THE CLOTHING INDUSTRY: ACTORS AND PROCESSES

In recent decades, companies in the clothing industry have adopted principles and criteria of environmental and social sustainability. The most innovative companies form a business hub called green fashion, sustainable fashion, eco-fashion, bio-fashion, ethical fashion, environmental fashion, ecological clothing or “slow fashion”. So, is this a passing trend or a structural change? Using the hypothetico-deductive method, bibliographic and statistical analyses and studies of published cases, this study investigates the environmental behavior of the main social sectors or stakeholders involved in the operation of the fashion industry. The results reveal that the change toward the greening of the clothing industry is in fact structural and is led by the most advanced countries. Contributions to this structural change come from public administrations via environmental, commercial and consumer legislation, from international NGOs by means of alert campaigns that raise consumers' environmental awareness, from researchers identifying chemical risks, and from designers and companies using ecologically friendly materials in fabrics and incorporating ethical practices in manufacturing processes.