Martijn Hesselink, ‘Unfair Prices in the Common European Sales Law’

At its plenary session of 26 February 2014 in Strasburg, the European Parliament voted in favour of the Common European Sales Law (CESL). The legislative resolution, which was adopted by a large majority, includes two amendments which significantly extend the protection of consumers against unfair terms, not only to individually negotiated terms but also to core terms, including price terms. The combined effect of these two amendments is that contract prices, including individually negotiated prices, in consumer contracts would become subject to unfairness control. So, if these amendments will be supported by the European Commission and the Council, this will bring a major increase in consumer protection compared not only to the Commission’s proposal, but also to the minimum level of protection that the unfair terms directive of 1993 currently requires the Member States to maintain in their national laws.

In this contribution to Festschrift for Hugh Beale, I argue that the Amendments to the CESL extending unfairness control to individually negotiated terms and core terms, including price terms, as adopted by the European Parliament in first reading, make good sense. And there is good reason for the Council and Commission to support them. Extending the unfairness control in the CESL to individually negotiated terms and core terms, including price terms, contributes to avoiding injustice, increasing consumer protection and consumer confidence. At the same time, the control of individually negotiated terms and core terms does not represent an interference with private autonomy, not even if personal freedom is understood in a purely formal libertarian sense, since no one will be obliged to opt into the CESL. Nor is the unfairness control of core terms impracticable or is it likely to lead to legal uncertainty. It will even be easier, in most cases, to assess the unfairness of the contract price – and to predict the assessment – than in the case of non-core terms, since the price on a reasonably well functioning market will be available as a reference price.

Hesselink, Martijn W, Unfair Prices in the Common European Sales Law (November 11, 2014). S Vogenauer and L Gullifer (eds), English and European perspectives on contract and commercial law: essays in honour of Hugh Beale (Oxford: Hart Publishing 2014), 225-236; Amsterdam Law School Research Paper No 2014-56; Centre for the Study of European Contract Law Working Paper Series No 2014-13.

First posted 2014-11-14 07:04:39

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