Pre-contractual Information Duties Research Articles

Sanctions for Lack of Fulfilment of Information Duties: Searching for an Adequate Regulatory Model for Personalized Agreements

The effectiveness of the protection-by-information model in consumer law depends primarily on the method of structuring pre-contractual duties and sanctions correlated with the lack of fulfilment of said duties. Modern legal doctrine considers applying technology to law-making i.e. to fix flaws in the existing protection-by-information model. However, during this discussion, the problem of sanctions for lack of fulfilment of information duties has been disregarded. This article fills this gap by exploring how the use of technology might influence the adequacy of contemporary sanctioning models. There are two main approaches towards how lack of fulfilment of information obligations should be sanctioned. First, the fact that consumer acts based on his false impression of reality can trigger liability. As a result, the individual protection mechanism (i. a. regulation of mistake and deceit) is seen as a proper sanction for non-compliance with information duties. Second, failing to provide pre-contractual information might itself be sanctionable. In this scenario, standardized protection mechanisms are preferred (Unfair Commercial Practices Directive, Consumer Rights Directive). However, the balance achieved by linking specific sanctioning mechanisms to particular pre-contractual obligations is disturbed by the use of personalization tools during contracting. Therefore, the postulate of answering the personalization of contracts with personalization of pre-contractual information duties is discussed. The possibility of extending the scope of personalization to sanctions of these norms is considered. Finally, the introduction of smart execution mechanisms is explored, and the influence of technical changes on the essential characteristics of protection-by-information model is observed.

Pre-contractual Information Duties of Insurers. A German and Polish Approach

Information is the key element of consumers and customers protection in insurance. Implementation of Insurance Distribution Directive (IDD) by EU member states in 2018 was yet another step – at least in theory – in expanding access to basic knowledge about insurance products. Nevertheless, despite certain new solutions included in IDD, pre-contractual duties of insurers still remain primary source of mentioned information for policyholders. EU member states have adopted various approaches to IDD implementation and – in particular – legal shape of pre-contractual obligations of insurance contract parties. Hence, the purpose of this paper is to introduce contemporary perspective on insurers pre-contractual information duties in German and Polish legal systems. First part includes a basic outline of insurance law in both countries in scope of IDD implementation. It is followed by comparative commentaries on “demands-and-needs test” as well as general information duties set out i.a. in German Insurance Contract Act (VVG) and Polish Insurance Distribution Act (UDU).The paper closes with certain conclusions and findings.

Leander D. Loacker: Informed Insurance Choice? The Insurer’s Pre-Contractual Information Duties in General Consumer Insurance

Leander D. Loacker: Informed Insurance Choice? The Insurer’s Pre-Contractual Information Duties in General Consumer Insurance

‘Fraud’ and ‘Misleading Commercial Practices’: Modernising the Law of Defects in Consent

AbstractThe rules provided by the civil codes on defects in consent were designed at a time when the notion of consumer law did not exist and fairness at the pre-contractual stage was not widely considered as a value worthy of protection. Matters have changed radically in the last three decades. The proliferation of rules protecting consumers on a European level, especially through information duties and rights of withdrawal, and the growing impact of general clauses, has led to a fragmentation of domestic contract law. This clash of different sets of rules is particularly conspicuous in the field of unfair commercial practices as the European legislator has not made provision for specific private law remedies for individual consumers in cases of misleading and aggressive commercial practices. This article addresses the particular issue of the applicability of the law of fraudulent misrepresentation to cases of misleading commercial practices. The purpose is to reconsider ‘fraud’ in terms of a defect in consent, in a manner that is both more in line with the modern features of European contract law and better able to counteract new market strategies based on exploiting cognitive weaknesses. The focus is thus put on the relationship between pre-contractual information duties and defective consent, as well as on some insights of law and economics, which demonstrate that ‘consent theories’ or ‘will theories’ cannot provide precise criteria to indicate when a contract should be void. In conclusion, a possible legislative intervention aiming to substitute the rules on fraud for a set of remedies for violation of information duties is discussed.

Ochrona prawna zaufania przez informację przy świadczeniu usług finansowych

Legal protection of trust in the area of financial services is a very important subject, which finds reflexion in contemporary law, both European as well as national one. Financial services constitute, as a matter of fact, products of trust, which means that the evaluation of their properties, the relation of the quality to the price, the risk resulting from concluding the contract become known to the non-professional buyer after concluding the contract. In such circumstances, the non-professional party is forced to act in trust to the information received from the financial institution, and failure to provide the buyer with the obligatory information or providing it in an non-transparent form may lead to appearance of disturbances in the efficient functioning of market mechanisms, on which the price of the service should reflect the information about its quality and risks connected with it. The article provides an insight into the area of trust and precontractual information duties as an institution addressed to protect parties’ trust one to another. The scope of the article covers the area of financial services, in particular credit and investments.

The Consumer Rights Directive – An Assessment of its Contribution to the Development of European Consumer Contract Law

Following a turbulent three year legislative process the Consumer Rights Directive was adopted in October 2011. Less ambitious than the original proposals, the Directive nevertheless extends the maximal harmonisation approach to a number of aspects concerning the pre-contractual information duties and right of withdrawal in B2C off-premises and distance contracts and also introduces other new features to the consumer acquis. The following paper focuses primarily on the new European rules concerning pre-contractual information obligations and the right of withdrawal. In so doing the authors will demonstrate that in spite of some of the steps forward, the Directive is overall a conservative consolidation that also in some respects takes a number of steps backwards. Its contribution to the development of European consumer contract law is therefore limited, although some of the new measures show an appreciation of the impact of behavioural economics for the most part it follows a rather traditional approach.

The ‘Non-sense’ of Pre-contractual Information Duties in Case of Non-concluded Contracts

Abstract: The paper starts describing the borrowings of the new Proposal of Regulation on Common European Sales Law in respect to both the Draft Common Frame of Reference (DCFR) and the Consumer Rights Directive, and the further 'debts' in respect to the Principles of Existing EC Contract Law (ACQP) and Principles of European Contract Law (PECL). It then comes to explain the provocative title, the 'non-sense' of pre-contractual information duties in case of non-concluded contracts. In our opinion, no clear enforcement policies for the violation of pre-contractual information duties where a contract is not concluded are provided in the Proposed Regulation on Common European Sales Law (CESL). This is not in tune with the remarkable space (correctly) given to pre-contractual information duties within the formation of contract phase. The paper aims to highlight the importance of an effective enforcement of these rules. This latter problem is intertwined with the question of the interface of the new Proposal of Regulation with national laws and with existing (different) private law rules. Another question afforded in the paper is whether this 'model form instrument' would undermine the contractual autonomy and the classic principle of freedom of contract in current contract law. Our concluding remarks give some explicit suggestions. Résumé: Le présent article décrit tout d'abord les emprunts que la nouvelle Proposition de Règlementsur le Droit Commun Européen de la Vente fait au DCFR et à la Directive sur les Droits du Consommateur, et les autres ''dettes'' vis-à-vis de l' ACQP et de la PECL. Ensuite, il explique le titre provocateur, le ''non-sens'' des devoirs d'information précontractuelle en cas de contrats non conclus. A notre avis, la proposition de Règlement susvisé ne prévoit aucune mesure claire d'exécution concernant la violation des devoirs d'information précontractuelle lorsque le contrat n'est pas conclu. Ceci ne concorde pas avec la place remarquable (correctement) accordée aux devoirs d'information précontractuelle dans la formation du contrat. L' article tente de mettre en lumière l'importance de l'exécution effective de ces règles. Ce dernier problème est mêlé à la question de l'interface entre la nouvelle Proposition de Règlementet les lois nationales et les règles (différentes) de droit privé existantes. Une autre question abordée dans cet article est celle de savoir si cet ''Instrument de forme modèle'' pourrait menacer l'autonomie contractuelle et le principe classique de la liberté contractuelle en droit actuel des contrats. Nos remarques en conclusion donnent quelques suggestions explicites.

The Draft Directive on Consumer Rights: Choices Made and Arguments Used

The 2008 proposal for a Directive on Consumer Rights (hereinafter: the Draft) aims at reorganizing the acquis of four specific European directives on consumer protection into a more coherent codification of consumer rights. Specifically, it contains rules on precontractual information duties, on withdrawal rights for distance and off-premises contracts, on consumer sales and on general contract terms in consumer contracts. In replacing the four directives with a minimum harmonization character, the Draft marks a further step towards full harmonization of consumer contract law in Europe. This is an unsettling step because the level of protection offered to consumers in the Draft hardly exceeds the level of protection offered by the four directives mentioned earlier. Instead, it diminishes this protection in some regards. In light of all this, the question arises whether the policy choices underlying the Draft are, in fact, convincingly underpinned by solid argumentation. This article addresses this issue by first analyzing the Draft's use of the generic concept of “contracts between consumers and traders”. It is argued that full harmonization of a badly delineated territory is ill-advised. Subsequently, the argumentative power of the policy considerations forwarded by the European Commission in its Regulatory Assessment Study is tested. The article concludes that the Commission’s assessment of expected costs and benefits of the Draft is waver-thin and geared towards persuading the reader of the aptness of choices already made. In some respects, the evidence presented by the Commission is outright unconvincing. At certain points, the Draft even fuels the reader’s suspicion of foregone conclusions. Overall, the need for reduction of the level of protection offered by the current minimum harmonization directives is poorly argued by the Commission and appears, in a number of important ways, not to reflect the socio-economic relationships that exist in at least some of the Member States.

Pre-contractual information duties in the acquis communautaire

Both authors are members of the Acquis Group. As part of the work towards a Common Frame of Reference on European Contract Law (CFR), the Acquis Group is examining the existing rules of EC private law to identify which (if any) principles may form the basis of these measures. This work will complement the comparative work undertaken by the Study Group. In this paper, the authors analyse the challenges posed by the “acquis approach”, and illustrate this with their work on establishing principles on pre-contractual information duties. Having set out the fundamental aspects of the acquis approach, the authors examine the nature and purpose of pre-contractual information duties, before turning to identifying the specific sources in the acquis communautaire. They then suggest a number of possible principles which may be derived from the acquis, but also highlight some of the unresolved questions.

European rules on pre-contractual information duties?

European rules on pre-contractual information duties?

European rules on pre-contractual information duties?

European rules on pre-contractual information duties?

Des principes de la conclusion du contrat dans l’acquis communautaire

The article shows, focussing on formation of contract that the existing European Community law contains principles which can form the basis for a more coherent future European contract law in accordance with the action plan of the European Commission. These include not only fundamental principles of contract law such as freedom of contract, ensuring contractual parity in favour of the structurally weaker party and nondiscrimination on grounds of race, ethnic origin and gender. Moreover, one can also extract from the Acquis communautaire a series of further principles with regard to various aspects of formation of contract, such as the agreement of the parties as the basis of contractual obligation, the binding effect of pre-contractual information duties and the exercise of withdrawal rights. These principles more closely correspond to the modern developments and needs in the internal market than the principles which result from a comparison of the legal traditions of the member states. They should therefore assume a central role in the elaboration of the Common Frame of Reference for European contract law.