Unfair Terms In Consumer Contracts Research Articles

Limitation periods in consumer disputes

This contribution analyzes the court's ex officio obligations in consumer disputes regarding the statute of limitations within the Council Directive 93/13/EEC framework on unfair terms in consumer contracts and current legislation. It also considers recent case law developments. The statute of limitations aims to allow debtors to contest or confirm debts that they may not recall or that are disputed. However, the legislation infringes upon debtor autonomy by mandating protection, creating an asymmetry between suppliers and consumers. The concept of procedural protection for the weaker party in consumer disputes aligns with the EU's internal market's sustainable development. The court's ex officioconsideration of limitations is crucial in achieving this goal. Slovakia's entry into the EU led to adopting procedural protection measures, exceeding minimum harmonization standards, and fulfilling international obligations. Slovak civil legislation reflects the inequality between consumers and suppliers, resulting in specific substantive law derogations to address this disparity. Including a protective ex officio statute of limitations in consumer, disputes represent a baseline for consumer protection in civil court proceedings, offsetting debtor information deficits. This analysis reveals the coexistence of two fundamental principles in civil litigation: equality of parties and protection of the weaker party in consumer disputes. The court's ex officio approach upholds the principle of safeguarding the weaker party and enhances equality in dispute resolution. In conclusion, introducing an ex officio court obligation to apply the statute of limitations in consumer litigation guarantees consumer protection and is necessary to ensure weaker litigants' fundamental human right to a fair trial.

A Short Biography of the Unfair Contract Terms Directive on the Occasion of Its 30th Anniversary

This year marks the 30th anniversary of the adoption of Council Directive 93/ 13/EEC on Unfair Terms in Consumer Contracts. The article explores how the Court of Justice of the European Union’s (CJEU) case law on the Directive has evolved over the last three decades. Contrary to what one may have expected at the time the legislation was passed, the Directive has had a greater impact on the Member States’ procedural law than on substantive contract law. In particular, the CJEU has refrained from spelling out a common European standard to assess the fairness of contractual terms in business-to-consumer transactions. Instead, the Court leaves it by and large to domestic courts to determine, on the basis of the applicable national law, whether the substance of a particular clause is unfair and therefore void. On the other hand, the CJEU has been keen to develop procedural requirements for the judicial review of standard terms in consumer contracts, thus significantly restricting the principle of national procedural autonomy in the realm of consumer law. Finally, the article addresses some more recent trends in the CJEU’s case law, especially with regard to the legal consequences arising for the contract as a whole where a contractual term is found to be unfair.

Approaching the European Union Directive on Unfair Terms in Consumer Contracts Through the Lens of the Principle of Good Faith

The article aims to delve into the nuanced interpretation of the principle of good faith within the domain of unfair terms prevalent in consumer contracts. This principle has proven pivotal in appraising the fairness of terms, serving as a benchmark. Its multifaceted application across legal domains necessitates a precise explication of its contextual significance. Emphasizing the imperative to delineate the exact connotation of the good faith principle in the judicial realm of consumer safeguarding, the article subsequently elucidates this proposition through a meticulous analysis of the Directive and its corresponding legal cases. However, the initial analysis underscores the Directives somewhat ambiguous delineation of the good faith principle. This prompts an inquiry into whether such ambiguity hampers the comprehensive evolution of this principle within the broader context of EU private law. Consequently, the subsequent discourse endeavors to rationalize this aspect within a redefined comprehension of the jurisprudential underpinning of the Directive.

Regulation of Unfair Contract Terms in Central and Eastern European Countries

The paper summarizes results of a comparison of unfair clause legislation in the Central and Eastern European countries. In the introductory part, the development of the regulation of unfair terms, the sources of inspiration as well as the different approaches in traditional civil law countries are described. Subsequently, the regulations in the Czech Republic, Slovakia, Hungary, Poland, Romania, Slovenia, Serbia and Croatia are compared. The contemporary regulation is based on the minimum standards of the Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts. Nevertheless, the scope of protection varies in its effects in particular states (e.g. scope of applicability, nature and number of prohibited clauses). The increasing importance of public authority in enforcement is evident. In the countries compared, protection against unfair terms is not limited only to consumer contracts, but it applies in different extent to some others as well.

Comparative Analysis of Deficiencies in the Law on Unfair Contract Terms in Thailand and Practical Ways for Amendment

Abstract This article investigates the legislation on unfair contract terms in Thailand – the Unfair Contract Terms Act, B.E. 2540 (1997) (Thai ucta). It provides critical discussion of fundamental provisions and legal concepts of this Act in comparison with, where relevant, the American statutory unconscionability doctrine, the Unfair Contract Terms Act 1977 of the United Kingdom (UK ucta) and the Directive on Unfair Terms in Consumer Contracts 1993 of the European Union. As this domestic legislation is principally a product of the imitation of the UK ucta, many of its provisions are compared and contrasted with provisions of the UK ucta. This article brings out deficiencies having long dwelled in the Thai ucta and resulting in clouds of confusion even in judicial decisions of Thailand. Practical ways in which those deficiencies can be rectified are clearly recommended in the hope of providing insightful information to legal practitioners and legal scholars alike.

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.

A Claim for Payment of Amounts Exceeding the Value of the Completed Contractual Obligation to be Returned Due to Invalidity of the Loan Agreement in the Light of the Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts and the Case Law of the Court of Justice of the European Union

In view of the increasing number of consumer claims examined by common courts of law for establishment of invalidity of mortgage loan agreements denominated in or indexed to a foreign currency (most often, the Swiss franc), a question arises about the validity of the concept of allowing banks to pursue claims against consumers for a substitute of a fee, compensation, reimbursement of costs incurred, or valorisation, in connection with the use of the capital paid out to consumers after the execution of the contract that is subsequently ruled to be invalid. The authors argue that on the basis of the current jurisprudence of the Court of Justice of the European Union relating in particular to the interpretation of the Directive 93/13 and its objectives, it is admissible to rule that the bank, being the stronger party to the mortgage loan agreement, is not entitled to the above-mentioned claims. The aim of the study is to discuss the case law of the Court of Justice of the European Union in terms of justification of the above position, in relation to the expected decision on the preliminary question of the District Court for Warsaw-Śródmieście in Warsaw.

Consumer Protection: The Interaction Between Written and Unwritten Law

The scope of consumer protection according to both written and unwritten law is assessed through an analysis of court decisions and decisions of the Consumer Complaints Board in Danish law with references to other Scandinavian law and to EU case law. The article analyses consumer protection in Scandinavian contract law according to general principles of interpretation and statutory law in the form of national legislation implementing Article 5 of Directive 93/13/EEC on unfair terms in consumer contracts. The so-called (larger) general clause of invalidity in the form of section 36 of the relevant national Contracts Acts is included as it greatly influences interpretation in Scandinavian contract law. The analysis involves a discussion of interpretation as a legal source in Scandinavian contract law, and a presentation of the Scandinavian consumer complaints board system with an emphasis on the Danish system. It is argued that the (traditional) general principles of interpretation in contract law play an important role as a supplement to written law in the aim of consumer protection, and that both courts and the Consumer Complaints Boards seem to operate with protection of consumers as a relevant underlying legal basis when interpreting consumer contracts. Both general rules of interpretation and the underlying legal basis (in the form of i.a. non-mandatory rules and customs) thereby seem to enhance consumer protection in Scandinavian contract law.

A Comparative Analysis of Unfair Terms in Consumer Contracts in Malaysia and Singapore

The inclusion of welfarist ideology in the consumers’ trade derived from the ideal of paternalism is a paradigm change from the doctrine of freedom of contract. Regulatory and legislative steps must be taken to support and attract consumers to the industry. Judicial and legislative actions must be taken to correct the market flaws that create consumers’ vulnerability while trading in the global market. As one of ASEAN members’ founders, Malaysia is moving towards people-centered economic endeavours to balance both industry and consumer interests through exclusion clauses to prevent unfair practices in consumer contracts. Legal intervention is one of the ways to curbing the issues that arise from exclusion clauses. Before 2010, the non-existence of a specific regulatory framework to limit exclusion clauses usage in contracts involving consumers further increases consumers’ vulnerability. Traditional judicial approaches in the battle against coercion and unethical behaviour of traders before 2010 did not engross consumer rights and interests. This sign is, in fact, the modern age of customer contracts, the enforcement of unfair terms. This article used the content analysis technique and analysed the evolution of legislative interference and judicial approaches in interpreting exclusion clauses in contracts involving consumers in Malaysia and Singapore.

The Statutory and Institutional Framework for the Protection of the Rights of Consumers Against Unfair Terms in Consumer Contract: The Cameroonian Reality

The content of this research, reveal the status of consumer protection in Cameroon. The objective of the study was, to examine the statutory and institutional framework ensuring the protection of the rights of consumers against unfair contract terms in Cameroon. In protecting the rights and interests of consumers, the State of Cameroon has put forth laws and some institutions, ratify global and regional instruments to safeguard consumers’ interest, against unfair terms in consumer contracts. Notwithstanding the State’s efforts, sellers still conduct their businesses in violation of the existing laws. Thus, a further intervention by the state to ensure consumers’ rights and to maintain justice, since in applying contract law principles in ordinary commercial dealings, the individual consumer is usually positioned at a disadvantage as compared to the seller of goods, technology and services providers in terms of their bargaining power in the contract. This is unfair, detrimental and it creates imbalance between the parties.

Personalized Unfair Terms Control: EU Law Meets Innovative US Doctrines

According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law tailored to specific individuals could affect both default and mandatory rules and provide for a more efficient and just legal system. The argument goes that such a flexible and technology-driven regulation is also capable of addressing the issue of unfair personalized pricing schemes applied by businesses in online transactions. The present contribution adopts a futuristic approach and investigates whether these doctrinal proposals could possibly pave the way for an amendment of the Directive 93/13 on unfair terms in consumer contracts. In doing so, the main elements of the unfair terms control are highlighted, together with their link with national default rules, which serve both as a benchmark for the assessment of the unfair character of the clause and as gap-fillers. Based on a comparison with the findings of US scholars, it then explores how the unfair terms control may change in order to reduce cross-subsidies to a minimum and tackle discriminatory pricing schemes. Finally, this article elaborates further on how the modifications could be implemented within a new enforcement mechanism, using a technology that would also cover so-called smart contracts. personalization, unfair terms control, big data, consumer contracts. Motsclés: Personnalisation, Contrôle de clauses abusives, Grandes bases de données, Contrats conclus avec les consommateurs Schlüsselwörter: Personalisierung, Kontrolle missbräuchlicher Klauseln, Big Data, Verbraucherverträge

Unfair Terms in Loan Agreements Connected with Foreign Currency. Comment to the Judgement in Case C-186/16 Ruxandra Paula Andriciuc e.a. contre Banca Românească SA

In the judgment under appeal, the referring court asked the Court in the context of proceedings between a banking institution and several individual borrowers, the interpretation to be given to Article 3(1) and Article 4(2) of Directive 93/13/EEC Council Directive of 5.4.1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29–34). The Court indicated that a term such as that at issue in the main proceedings, incorporated into a loan agreement concluded in a foreign currency between a seller or supplier and a consumer without being individually negotiated, on terms by which the loan must be repaid in the same currency, is covered by the notion of ‘main subject matter of the contract’ within the meaning of Article 4(2) of Directive 93/13. Furthermore, it is for the national court, upon considering all the circumstances surrounding the conclusion of the contract, to ascertain whether, in the case concerned, all the information likely to have a bearing on the extent of this commitment had been communicated to the consumer, enabling him/her to estimate in particular the total cost of his/her loan. The Court accepted in a judgment that Article 3(1) of Directive 93/13 must be interpreted as meaning that the assessment of the unfairness of a contractual term must be made by reference to the time of conclusion of the contract at issue, taking account all of the circumstances which could have been known to the seller or supplier at that time, and which were such as to affect the future performance of that contract.

A Comparative Analysis of the Regulation of Unfair Terms in Asia

This paper examines the regulation of unfair terms in consumer contracts, as reported by consumer law experts in more than a dozen Asian countries. The comparative analysis proceeds in four parts and draws some comparisons to the regulation of unfair terms in the United States. The first part examines the role of general doctrines of unfairness, specifically the unconscionability and good faith doctrines, as a check on unfair contract terms. The second part looks at the various ways in which the reporting countries address procedural unfairness in consumer contract formation. The third part is a partial taxonomy of the wide variety of substantive terms that are deemed to be unfair in countries across the region. The fourth part discusses the available remedies when a trader includes unfair terms in consumer contracts, ranging from nullifying the unfair term to possible criminal penalties.

Considerations on unfair terms in bank credit contracts

Over the last few years, we have seen an increasingly number of case law that was presented before national courts as well as the European Court of Justice concerning unfair terms in bank credit contracts. This subject was raised especially during the crisis in which the swiss francs had appreciated, leading numerous customers that had previously taken bank loans in this currency unable to pay back loans that had risen in almost half their value. Development in international and national legislation, such as Law no. 193/2000 concerning unfair terms in contracts concluded between professionals and consumers, that transposed into our national legislation the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, both restricted or banned the use of such practices and were in force long before the crisis was generated. This however did not stop credit institutions from inserting these types of clauses in the contracts that they had concluded. The issue that we aim to treat in this article is whether the recent practices of credit and bank institutions has changed over the course of the last few years, given the development of jurisprudence that most often than not condemns abusive or unfair terms in credit agreements with consumers.

Intricacies of Significant Imbalance as the Cornerstone of Protection against Unfair Terms in Consumer Contracts under EU Law

Significant imbalance in the rights and obligations of the parties to a consumer contract term is, together with good faith, a fundamental pillar of substantive protection against unfair terms. It is the primary tool provided by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts with a view to mitigating differences in bargaining power between professional traders and consumer on the ever-expanding capitalistic market within the EU. The paper comprehensively reviews the meaning of the “significant imbalance” element by reference to a cross-section of judgments handed by the CJEU and Polish courts. Generally, albeit with a few notable exceptions, the former court has engaged in a subjective-objective exercise aimed at discovering what the balance of rights and obligations would have been between the parties in the particular dispute at hand had it not been for the purportedly unfair clause. Besides that, the requirement has been utilized to impose ad bolster a host of information duties levied on traders so that protection is extended to cases where the consumer is unaware of their rights or are deterred from enforcing them due to procedural obstacles or prohibitive costs of judicial or administrative proceedings. The requirement of significant balance, rooted in the idea that the disproportion of market power between the parties to a disputed term necessitates government or judicial intervention to achieve or restore contractual equilibrium, is shown from a plethora of angles: its ideological foundations, practical connotations, its emphasis on consumer vulnerability and approach to economic power. Assistance and inspiration re gleaned from Polish jurisprudence where numerous questions either unanswered by the CJEU or left to the consideration of national courts, particularly the relation between reasonableness, on the one hand, and significant imbalance and good faith on the other, as well as between significant imbalance and good faith, have been tackled.

Die Sanktionierung missbräuchlicher Vertragsklauseln sowie die Vertragsrückabwicklung am Beispiel Polens

In recent years, the European Court of Justice has often dealt with disputes revolving around the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. This article focuses on controversial questions in the domains of legal doctrine and jurisdiction, in particular in the context of disputes over foreign-currency denominated or foreign-currency indexed loans. It discusses questions revolving around legal bases for reverse transactions following the invalidity of a contract, the lack of legal bases for performing a contract, jurisdiction on the invalidity of a contract in the case of unfair terms, without which the contract cannot be concluded, the extent of reverse transactions, ECJ jurisdiction, the Council Directive’s deterrent effect, the admissibility of substitute types of fulfilling the contract, and consumer claims against financial institutions.

Regulation of Unfair Terms in Consumer Contracts--An American Perspective

In the typical merchant-consumer transaction, standard terms are of course the norm. Consumer transactions are documented by contracts of adhesion where most, if not all, of the terms are drafted by the merchant and are not negotiable. Even if they were negotiable, the vast majority of consumers will either not be aware of this possibility or, quite reasonably, will conclude that they cannot bargain effectively over terms either because they do not understand their legal import or they cannot envision alternatives that would better serve their interests. Sometimes those standard terms are so one-sided in favor of the merchant that they inflict unfair hardship on the unknowing consumer. In the United States, there is no omnibus law on unfair contract terms that applies uniformly throughout the country. Regulation of unfair terms is addressed piecemeal, with limited protection in certain sectors at the federal level and most of the regulatory norms imposed by the individual states. Those norms can take statutory or common law form, and while they can vary widely from state to state, there are some parallel themes.

Badanie przez sąd z urzędu skuteczności powołania się na właściwość miejsca płatności weksla — uwagi na marginesie uchwały Sądu Najwyższego z dnia 19 października 2017, III CZP 42/17

EX OFFICIO EXAMINATION THE EFFECTIVENESS OF INVOKING THE JURISDICTION OF THE COURT ARISING FROM THE PLACE OF PAYMENT OF A PROMISSORY NOTE — COMMENTS ON THE MARGIN OF THE SUPREME COUTR’S RESOLUTION DATED 19 OCTOBER 2017, III CZP 42/17The article is about the relation between the obligation of ex officio examination of unfair terms in consumer contracts, including determining the jurisdiction of the court, and the nature of promissory law. The author will consider whether the domicile clause included in the promissory note issued by the consumer or defined in the promissory note agreement may constitute an unfair term in a consumer contract. It will be necessary to assess the character of promisory notes and terms contained. The consequence of the unilateral nature of issuing a promissory note is a denial of the right to examine the abusiveness of the terms contained in the fully completed promissory note. The possibility of examining the unfair character of the domicile clause exists, however, in the case of a blank promissory note, since it may not concern the promissory note itself, but the terms of the promissory note agreement.

UNFAIR TERMS IN CONSUMER CONTRACTS

The article deals with the concepts and signs of unfair terms in contracts with the participation of consumers. National legislation contains a warning that the seller (performer, manufacturer) has no right to offer in the contract and include unfair terms. In the European Union, such relationships are governed by Council Directive 93/13/EEC of 5 April 1993 On Unfair Terms in Consumer Contracts,which is horizontal in scope and applies to contracts to which the consumer and the seller/supplier are parties. The Directive states that an unfair term is recognized as a condition of a contract that was not individually negotiated, if, for breach of the requirement of good faith, it causes significant discrepancies in the rights and obligations of the parties arising from the contract, to the detriment of the consumer. Unlike national legislation, the Directive contains an exhaustive list of unfair terms. For example,conditions having a purpose or intention: a) to exclude or limit the legal liability of the seller or supplier in the event of death or injury to the consumer because of the activity or inaction of such a seller or supplier. b) to conclude an agreement that will oblige the consumer, according to which the provision of services by the seller or supplier will depend on the personal desire of the latter. c) automatically extend the contract of the specified duration, when the consumer does not show the opposite desire, if the specified deadline for the expression of the consumer’s desire is unreasonably short, etc. Such a list of conditions that may be considered unfair is inexhaustible. A study of national legislation shows that unfair terms of the contract violate the principle of good faith and lead to a significant imbalance of contractual rights and obligations and cause harm to the consumer. The presence of these conditions is the basis for their recognition as invalid, and in some cases invalidation of the contract as a whole.

Legislative Enforcement of Contractual Fairness in Malaysian Consumer Contracts


 Consumers faced with contract do not know what 'small print' contains or understand its effect. Exclusion clauses may deprive a consumer of specific rights in which he deserves protection. The Consumer Protection Act 1999 in Malaysia, allows the consumers to identify between procedural unfairness and substantive unfairness. However, the Consumer Protection Act 1999 does not adequately protect the consumer. By applying the content analysis research method, this paper reviews the legislative and judicial intervention on unfair terms in consumer contracts. This article advocates that Malaysia should establish a specific framework on consumer law protection against unfair terms in consumer contracts.
 Keywords: Exclusion clauses; unfair terms; consumer contracts; judicial-legislative intervention
 eISSN 2514-7528 © 2019. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open-access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia.DOI: https://doi.org/10.21834/jabs.v4i13.334