Control Of Unfair Terms Research Articles

The Legal Approaches on Regulating Unfair Contract Terms in Malaysia and Australia

In this global economy, the improvement in the daily technologies and the liberalization of trade has now given impact to nowadays contract which will affect the consumer protection system of every jurisdiction. To keep the consumer protection remain alive, they have to manage a certain law to keep the consumer against the unfair term in a certain contract in order to help the consumer from being biased in a contract. The unfair term significantly gave certain advantages against the consumer. In order to prevent this kind of thing happening, the consumer contract law has been enacted to give the right to the consumer and balance their inequalities in bargaining power. This article intends to explore more about the judicial and legislative interference on the unfair terms in consumer contracts in Malaysia and Australia. This article also aiming on comparing the Malaysian Consumer Protection Act 1999 with the Australian legal framework. The analysis shows that unfair terms have been treated as a polemic that requires the paternalistic intervention of government through specific legislation. This research therefore suggests the specific legislation in Malaysia as a measure to minimise the oppression and injustice in consumer contracts. By adopting the content analysis method, this paper aims at exploring the legal control of unfair terms and exclusion of liability in ‘business to consumer’ (B2C) contracts in Malaysia and Australia.

Control of Unfair Terms Under Cypriot Contract Law

The introduction of the EU Unfair Terms in Consumer Contracts Directive in the legal system of Cyprus was the first instrument specifically dealing with the problems that arise with standard form contracts and the issue of consent. However, the Directive only generated caselaw approximately twenty years after its adoption, whereas the principle-based approach of the test for unfairness (significant imbalance test and good faith requirement) was interpreted in the common law notion of absence of dishonesty. Hence, Cypriot courts interpreted good faith as “honesty in fact”. Under this interpretation, it seems that both procedural and substantive unfairness are not captured under the test. It is understood that whereas the statute codifying the contract law of Cyprus has incorporated the [civil law] will theory of contracts, no tools for the invalidation and scrutiny of terms that may be deemed unfair were provided. The statute placed considerable emphasis on procedural fairness, however, Cypriot courts seemed unwilling to adapt their approach and deal with the problems that standard form contracting poses, failing also to follow the developments in the UK. Thus, even after the adoption of EU consumer law directives, Cypriot courts show an unwillingness to scrutinize the parties’ initial allocation of risk, even though such allocation was done in a standardized manner by one party. Despite the mixed character of the legal system, consumer law directives and the introduction of content control can be seen as legal irritants.

NOTAS SOBRE EL CONTROL DE CLÁUSULAS ABUSIVAS ENTRE EMPRESARIOS. UNA SÍNTESIS DEL MODELO ALEMÁN

No comparative purposes and as an essay, this paper presents a brief analysis of the German law on the control of unfair terms in contracts between business. In addition, it exposes the extensive interpretation of protection to small businessmen by the German courts and concludes explaining the criticism to this same trend and stating the reform proposals in this regard.

Unfair Terms Control in Business-to-Business Contracts

The aim of the paper is to outline the regulation of one-sided (or onerous) standard terms in business-to-business contracts according to Italian law, in the light of the specific legislative rules and existent case law. Differently than other European legal systems, Italian law does not provide for a substantive control of unfair standard terms in business-to-business contracts. After the implementation of the European Directive no 93/13, the scope of the substantive judicial review covers only unfair terms in business-to-consumer contracts. Italian scholars often discussed the extension of the scope of application of consumer law to business-to-business contracts, but the legislature never addressed the issue. The Italian Civil Code of 1942 represented a forerunner in providing rules for the incorporation of standard terms in contracts, that are applicable to every kind of contractual relationship between businesses. At the present stage, such rules do not protect adhering parties in an effective way and give rise to many disputes. In some cases, the need of protection of weaker businesses induced Italian courts to develop judge-made law based on open-ended clauses, such as good faith. In other cases, Italian judges adopted the parameter of the worthiness of protection or the causa doctrine, to affirm the invalidity of harsh contractual terms. Further limitations of contractual freedom are the so-called ‘abuse of economic dependence’ and rules devoted to certain contractual terms, which are often standardized in business-to-business contracts (exclusions or limitations of liability and time constraints for the exercise of a right). After sketching the comparative law background with reference to German and French law, the article offers a comprehensive account of the aforementioned elements. The examination leads the author to affirm that Italian law entails an indirect control of unfair terms in business-to-business contracts. In the final part, its relevance in the international context is evaluated.

El estilo inglés de control preventivo de cláusulas abusivas

Este trabajo plantea que la forma en que el sistema inglés ha implementado el control de cláusulas abusivas es una experiencia que se debería mirar si, haciendo microcomparación, se busca construir una propuesta que mejore nuestro respectivo sistema interno. Diversas razones apoyan esta afirmación. A continuación, se parte explicando por qué resulta recomendable mirar cómo los ingleses han controlado preventivamente cláusulas abusivas y se describe cómo ha funcionado este control aludiendo, además, a algunos de sus resultados. Lo anterior se logra a través de un análisis del trabajo que la Office of Fair Trading realizó en este ámbito. El artículo concluye con una síntesis de las virtudes de este estilo de control preventivo de cláusulas abusivas.

The Empire Strikes Back: Digital Control of Unfair Terms of Online Services

The authors argue that it is possible to partly automate the process of abstract control of fairness of clauses in online consumer contracts. The authors present a theoretical and empirical argument for this claim, including a brief presentation of the software they have designed. This type of automation would not replace human lawyers but would assist them and make their work more effective and efficient. Policy makers should direct their attention to the potential of using algorithmic techniques in enforcing the law regarding unfair contractual terms, and to facilitating research on and ultimately implementing such technologies.

Great Disorder Under the Heavens: Is the Situation Excellent? The Proposed Reform of the Code Civil and the Control of Unfair Terms in Employment Contracts

The proposed reform of the French law of obligations introduces a general remedy against “significantly imbalanced” which would apply, inter alia, to employment (and quasi-employment) contracts. The proposed rule looks very much like an terms rule such as the one existing in consumer law. Is this novelty going to have a revolutionary impact on the judicial control of labour contracts? The paper examines control mechanisms already in place in French labour laws and the news rules using the established model of (consumer law) unfair control as tertium comparationis. On this basis, it is possible to gain some insight into the way the new rules may impact labour law adjudication.

Judicial Control of Unfair Terms in Employment Contracts in Scotland and Germany: A Comparative Analysis

Employment law practioners in Scotland and Germany have seen several recent cases of varying authority dealing with the unfairness of standard terms in employment contracts. The objective of this paper is to assess and compare two potential legal responses to the unfairness of terms: the implication of terms and the relevant statutory regimes on Unfair Contract Terms in both jurisdictions. A particular focus will be on clauses regarding the employee’s place of work and renumeration. As a result of the comparative study, the author will come to the conclusion that German courts are more inclined to interfere with contractual terms than their Scottish counterparts, the latter putting a stronger emphasis on the doctrine of freedom of contract.

Control of unfair terms in consumer contracts in Israel: Law and practice

This paper explains the need for both administrative and judicial control of unfair terms in standard contracts. The 1982 Israel Standard Contracts Law involves both guided judicial review and administrative control by a Standard Contracts Tribunal. Presented here is an analysis of the enforcement of the law rather than a purely theoretical approach. The Tribunal's involvement is much more effective than that of the courts as revealed by the remarkably small number of published court decisions. One can attribute the Tribunal's success to the close cooperation between the Ministry of Justice and the consumer organizations. The example of construction contracts was selected to illustrate the effective control of the Tribunal; however, weaknesses of the system are not disregarded and suggestions for amendments are proposed. A major conclusion reached is that administrative control is more effective than judicial control. A second conclusion is that the future lies in involuntary administrative control, a trend already in progress in the Israeli legal system.