Category Archives: Unconscionability and Unfair Terms

‘Are the User Contracts of Google and Facebook Illegal?’

“Are the user contracts of Google and Facebook illegal? No one has ever raised this question in court, so as yet there is no definitive answer. But why would anyone raise this question? Because the business model of Google and Facebook (free service for personal data) is immoral and the contracts implementing it are arguably […]

‘Interest rate modifications are not separate contracts – CJEU in C-639/18 Sparkasse

“On the 18th of June 2020 the CJEU delivered its judgement in C-639/18 KH v Sparkasse Südholstein on the interpretation of Art 2(a) of Directive 2002/65/EC on Distance Marketing of Financial Services. Unfortunately, the CJEU did not follow AG Sharpston’s consumer friendly opinion …” (more) [Recent developments in European Consumer Law, 28 June]

Mark Budnitz, ‘The Restatement of the Law of Consumer Contracts: The American Law Institute’s Impossible Dream’

ABSTRACT The American Law Institute has been attempting to write a Restatement of the Law of Consumer Contracts since 2012. The proposed Restatement has gone through ten drafts and has generated considerable controversy among the ALI membership as well as opposition from both consumer advocacy organizations and business associations. The project is an impossible dream. […]

Nicholas Mouttotos, ‘Does Transparency Lead to Unfairness? The Court of Justice of the European Union on the Duty to Inform about Mandatory Rules’

ABSTRACT The judgment of the Court of Justice of the European Union (CJEU) in Ottília Lovasné Tóth v ERSTE Bank Hungary Zrt can be seen as a missed opportunity, first, in elaborating on Article 3(1) of Directive 93/13, in particular whether the two criteria set by the article, of a term causing a ‘significant imbalance’ […]

Michael Lewis, ‘Pervasive Infancy: Reassessing the Contract Capacity of Adults in Modern America’

ABSTRACT This article argues that the law of consumer contracts should permit adults to access the same protections available to children where data about adult performance indicates that the two categories of people are similarly situated in the domain of consumer contracts. In making this claim, this article relies upon a description of capacity articulated […]

Damian Clifford, ‘Data Protection and Consumer Protection: The Empowerment of the Citizen Consumer’

ABSTRACT This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent […]

Snyder and Mirabito, ‘Boilerplate: What Consumers Actually Think About It’

ABSTRACT One of the most difficult problems in modem contract law is the status of standard terms – often called ‘boilerplate’ – in consumer transactions. On the one hand, standard terms are good because they reduce costs and increase efficiency and predictability. On the other hand, they can be used to impose unfair terms on […]

‘New Scholarship: Nancy Kim on the Proposed Restatement of Consumer Contracts Law’

“Nancy Kim, our Nancy Kim, has posted ‘Ideology, Coercion, and the Proposed Restatement of the Law of Consumer Contracts’ on SSRN. Her essay focuses on Sections 2 and 3 of the proposed Restatement (RLCC), which adopt the standard of notice and manifestation of assent and permit modifications under that standard. According to Nancy, these provisions […]

‘Architects obligations under the CRD – CJEU in NK (C-208/19)’

“Yesterday, the CJEU issued a judgment in the case NK (C-208/19) regarding the scope of application of the Consumer Rights Directive. The contract was concluded off-premises in the given case between two consumers and NK – an architect and a businessman – for the design of a family house, which would then be built based […]

‘I Am Altering The Deal. Pray I Don’t Alter It Any Further’

Shmuel I Becher and Uri Benoliel, Sneak In Contracts: An Empirical Perspective, 55 Georgia Law Review (forthcoming), available on SSRN. Have you ever created an account with Facebook, Amazon, Instagram, or Uber? If so, you agreed – with or without awareness – to let the company that drafted your contract a right to change that […]