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Ever since the Directive on Unfair Terms in Consumer Contracts of 1993, the
European project has been working intensively towards harmonization of
contract law across all EU Member States. To date, virtually none of the many
problems that have arisen have been resolved.
The SECOLA Annual Conference convened in Prague in 2005 to consider the
specific topic of unfair terms and to imagine ways in which the obstacles
raised by this provocative issue might be overcome. In this book, which
presents revised versions of the papers presented at that conference, fourteen
outstanding European scholars examine basic questions about the differing
conceptions of contract law in the national legal systems of the Member
States, divergent legal techniques such as interpretation of contract and
divergent approaches to legal reasoning, and contrasting views about the
nature of the problems presented by unfair terms in contracts. Among the
contentious matters discussed are the following:
the tension between party autonomy and social justice;
control over freedom of contract in the name of substantive fairness and
interpretation of contract terms
the intrusion of competition law into contract law;
the disputed meanings of good faith and legitimate expectations;
the requirement of ‘plain intelligible language’;
and characterization problems
Above all the essays ask: Can harmonization of European contract law be
achieved? And if so, how? The answers offered not only clarify the stage we
have arrived at in this ongoing initiative, but also identify the essential
conflicts that must be understood if we are to secure meaningful regulation of
contract terms at a transnational level. For these reasons the book is
enormously valuable to all parties interested in this crucial component of
Preface. 1. The Directive on Unfair Contract Terms:
Implementation, Effectiveness, and Harmonization; H. Collins. 2.
Some Reflections on Cassis de Dijon and the Control of Unfair Contract Terms
in Consumer Contracts; H.-W. Micklitz. 3. Criteria for Assessing
‘Unfairness’ in Consumer Contracts: An Economic Analysis; A. N.
Hatzis. 4. Party Autonomy and Social Justice in Member States and
EC Regulation: A Survey of Theory and Practice; M. Träger. 5.
Standard Contract Terms: The Role of the Courts and Moral Suasion by
Independent Authorities; G. Alpa. 6. Self-regulation in European
Contract Law; F. Cafaggi. 7. On the Development of European
Standard Contract Terms; S. Whittaker. 8. Standard Contract
Terms and Information Rules; C. Armbrüster. 9. The Rules
Applicable when Standard Contract Terms are Avoided and Contracts with
Inequality of Bargaining Power: Construction of a Unitary Model of Invalidity
or a Plurality of Models? M. Rosaria Maugeri. 10. Unfair
Contract Terms in Search of Harmonization; C. Amato. 11. The
Interpretation of Standard Clauses in European Contract Law; De Boeck. M.
Van Hoecke. 12. Standard Clauses and Unilateral Promises; C.
Cauffman. 13. Standard Contract Terms and Financial Contracts;