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The aim of the paper is to provide a reconstructive reading of the case Bank M in the light of the core principles of the system of protection established by Directive 93/13, as well as, more generally, the regulation of restitutionary remedies derivable from national laws and the general principles of EU law. The analysis takes particularly into account the Italian civil lawyer's point of view, as before the advent of Bank M, the Italian Supreme Court had already ruled on the same subject, establishing an unprecedented version of the condictio: an asymmetrical condictio, which has been defined, with a significant expression, as 'protective condictio indebiti'. Since both Courts allow the non professional party to pursue restitutory claims to which the professional party is not entitled as well, one might be led to believe that the same starting question was resolved in the same way in both cases, and therefore that, as a result of the case Bank M, a 'protective condictio indebiti' such as that established by the Italian Supreme Court can be said to have been established (also) in European contract law. However, for the reasons to be explained below, it is believed that the CJEU did not intend to introduce a unilateral or asymmetrical claim for recovery of undue payment, but merely permitted the consumer to demand what, under domestic law, he or she would have obtained by exercising the general action of unjust enrichment. It will be seen how the general content of restitutory protection is articulated in the system established by the UCTD, in the light of the most relevant ECJ's case-law on this subject, with the ultimate aim of verifying whether the 'protective condictio indebiti' outlined by Italian case-law can enter fully into European contract law. 156 [ABSTRACT FROM AUTHOR]

When determining the optimal deductible level for an insurance policy, a policyholder faces two limitations. First, uncertainty arises from the randomness of future losses. Second, the opacity of the functional forms of the policyholder's loss distribution and utility function contributes to additional limitations. While the academic literature focuses on the former, we additionally include limited information on these functional forms in our model setting to reflect real-world decision-making. That is, we draw on an expected utility framework and analyze the relationship between optimal deductible levels under limited and full information. We also derive several decision rules under limited information in order to approximate the optimal deductible level under full information. To support real-world decision-making, these rules could be easily implemented in an online decision aid offered by an insurance broker, a comparison portal for insurance contracts or a consumer protection agency. [ABSTRACT FROM AUTHOR]

Online terms-of-use (TOUs) are the most widely used form contracts in human history. But TOUs are as poorly understood as they are ubiquitous. Their proliferation has fueled a yawning gap between contract law and consumer reality. The notion that users read and understand online TOUs, disproven in academic research, is the subject of pop culture mockery. Yet contract law assumes something very different. Because classic legal doctrines apply to online contracts, consumers routinely find themselves legally bound to contracts they have not--and often could not--read. In this Article, we evaluate the law and linguistics of a critical area of consumer contracting: smartphone-based social platforms. Our interdisciplinary study examines an original dataset of 195 contracts (TOUs, privacy policies, and community guidelines) for seventy-five apps. Our analysis highlights a decoupling of contract doctrine and consumer reality in the smartphone age of online contracting. Our results show that this divergence is fueled by extraordinary volume, complexity, and asymmetries in platform-to-consumer contracts. In addition, our results offer evidence that the decoupling has grown in recent years. [ABSTRACT FROM AUTHOR]

This paper is a critical presentation of the CJEU case-law on UCTD, with particular reference to the non-filling of the contractual gap resulting from the unfairness test by applying 'dispositive' law or supplementary interpretation. The result contradicts the principles and methods of national civil law: not only does the balance in the contract suffer under the position the CJEU has chosen, as it creates alternated forms of balance of interests rather than the identical ones sought by the parties, but moreover, the increasing number of different cases imposes an ambiguous approach on the CJEU, since European judges have to ask on a case-by-case basis what the best interest of the consumer is. By adopting such a functional approach in favour of the substantive justice of the contract, the ECJ decided with questionable results with regard to national civil law, while methodological legal questions as to whether the contract should stand as it is, following the unfairness test, or whether a supplementation of the contract should take place are still open. It is therefore of critical importance to achieve an optimal combination between a fair balance of the contract and effective consumer protection. 423 [ABSTRACT FROM AUTHOR]

The paper examines the development of the case law of the Court of Justice of the European Union (CJEU) on the consequences of (non-)transparency claims in consumer contracts in the case of the supply of intellectual (legal) services. In its recent decision (Case C-395/21, D V), the CJEU was confronted with the consequences of the unfairness of the remuneration term contained in a legal services contract. The Court's analysis of the non-transparency (and unfairness) of core terms under Articles 4 para 2 and 5 UCTD and its consequences under Article 6 UCDT raises a variety of questions. Specifically, the D V case illustrates the difficulties of the CJEU in striking an adequate and effective balance between consumer protection on the one hand and the right of the business party (lawyer) to her/his counter-performance (the remuneration) for the legal services on the other hand. This, in a nutshell, is because the unfairness of the term led—like most mortgage loan agreements denominated in foreign currency—to the invalidity of the whole price-setting mechanism, depriving the supplier of his/her remuneration in its entirety. Against this backdrop, the paper will address the troublesome relationship among the unfairness of core terms encompassed in consumer contracts providing intellectual services, restitutionary remedies and judicial revision of the unfair terms, alternatively leading to situations of consumer over-protection and under-protection. First, the paper will highlight why this case law poses new challenges for both consumer and national law and why it should be treated differently from – or, at least, in confrontation with – the recent CJEU's case law concerning the mortgage loan agreements saga. Secondly, the paper 395 will argue that the denial of remuneration of the supplier—even though complying with the aim to restore the legal and factual situation in which the consumer would have been in the absence of the unfair term—could entail consumer over-protection issues, since the performance could not be returned; this situation could potentially lead to clashes with overarching general principles (such as the principle of proportionality). Lastly, the exclusion of a judicial revision in the sense of a judicial estimate could be detrimental for the consumer if the quantification of the supplier's remuneration would be impossible without such a judicial estimate. In that case, the invalidity of the unfair term and of the contract in its entirety could expose consumers to unjust enrichment claims, thus frustrating the CJEU's aim of preventing judicial estimates of a fair charge and undermining the principle of legal certainty, as interpreted by the European Court. In this sense, such an orientation will trigger a situation of consumer under-protection. In the final analysis, the paper will address some of the possible systemic implications of the CJEU's case examined. The paper will further suggest that, in order to prevent both situations of over-protection and under-protection of consumers, we should rethink the mechanisms of the transparency assessment under the UCTD – in particular, when essential terms are concerned and neither the restitution nor the remuneration of the services provided is possible or consistent with EU Consumer Law. [ABSTRACT FROM AUTHOR]

Over the years, the UCTD has become one of the core EU directives aiming at the protection of both businesses and consumers (B2C), i.e., at the achievement of the appropriate balance between the parties' rights and obligations. However, the UCTD has also left quite a number of important legal questions unanswered. Besides the general clauses on the assessment of the unfairness of contractual terms, there remains a high degree of uncertainty as to the meaning of the transparency requirement and the legal consequences of unfair contractual terms. As a result, in spite of CJEU settled case law, as well as European Commission interpretation guidelines, there are diverging patterns in the national case law of the Member States. The aim of this paper is to investigate these diverging patterns by looking more closely into national case law and into the relationship between the CJEU and the Member States courts, taking as a case study the way in which the UCTD was applied in five countries (Austria, Croatia, France, Italy and Poland) in cases involving consumer loans indexed to the Swiss franc. The survey shows that there are noticeable differences in the interpretation of core concepts underlying the UCTD, such as the unfairness test, the exclusions from the unfairness assessment, and the transparency requirement. The most problematic areas, however, concern the legal consequences of the unfairness of contractual terms. By relying on the analysis of these and related issues, the authors have come to the conclusion that 347 even after 30 years of the existence of the UCTD, there are still many important legal questions that need solving. [ABSTRACT FROM AUTHOR]

Thirty years since it entered into force, the Unfair Contract Terms Directive ('UCTD') needs updating to address the challenges posed by digital services. This concerns in particular the fundamental research question of identifying new unfair terms of digital service providers ('DSPs') so that they can be included in a new blacklist. These challenges are central to the ongoing EC study named 'Fitness Check of EU Consumer Law' concerning the evolution of consumer law in the digital age, and promoting a fair and transparent environment for consumers in an ever-changing digital landscape. The article identifies digital-specific unfair terms used by DSPs and organises them into four main themes (i.e., digital services and contents, automation and personalisation, price & free services, and consumers' data rights). It also discusses the methodological approaches adopted by institutions and researchers in detecting such types of unfair terms in digital environments. Finally, the article examines the possible regulatory options and, particularly, the possibility of establishing a new blacklist of digital-specific unfair terms and/or developing EC guidelines for fairness assessment under the UCTD. [ABSTRACT FROM AUTHOR]

Digital transformation is also transforming standard contract terms. With the emergence of online platforms, supported by algorithmic data analysis and self-enforcing technologies, platform terms are becoming increasingly common. The article argues that this type of terms differs from traditional standard terms in a number of ways, and it considers whether the existing unfair contract terms regime is still appropriate. The regulatory tools once developed for standard terms in bilateral agreements – transparency requirements, fairness review, and restrictions on contracting around – seem inadequate to meet the new challenges of digital transformation. In order to preserve – or rather recreate – the architecture of choice for private contracts, the paper argues for a new regulatory strategy: In order to strike the right balance between protecting private autonomy and avoiding significant imbalances, the regulatory objective should be to ensure the impartiality of platforms by focusing on the structural conditions of their rule-making. [ABSTRACT FROM AUTHOR]

In this paper, the transparency requirement, regulated in Article 5 UCTD, is discussed. This provision requires traders to draft terms that are to be incorporated into contracts with consumers in plain and intelligible language. The paper discusses the function of the transparency requirement, the different elements, and the consequences of a breach of the requirement: should the contra proferentem rule be applied, is the term lacking transparency unfair, or could it be argued that such term never was incorporated into the contract to begin with? And does it actually matter? [ABSTRACT FROM AUTHOR]

Foreign-owned banks from the European Union dominate Serbia's financial landscape. However, one of the controversies in the banking sector in the last decades has been approval and similar fees in loan contracts. The aim of this paper is to take a look at this issue through the lens of a consumer. Since there is no official data on the aggregate amount of processing, approval and similar fees in thousands of lawsuits against banks, the methodology in this research is largely based on the analysis of relevant legal acts and case law. A minor part is the statistical analysis of the context of the consolidation process in the banking sector in the last decade. The research has found multiple issues in the application of the rule of law in regard to consumer loans. Not only did banks prepare loan contracts with provisions that allowed them to deduct one-off payments of approval and similar fees from a loan amount, but customers may have paid for approving, disbursing and managing a loan twice or even multiple times. There were also cases showing that the process of approving a loan did not meet the requirements of providing the customer with adequate information in a pre-contractual phase, leading to questions on transparency and the balance between a bank and its customer. Future research would benefit from quantitative data about the amount of approval and similar fees in lawsuits and the exact number of lawsuits against banks in this respect. [ABSTRACT FROM AUTHOR]

Transparency is a promising means for enhancing democratic values, countering corruption, and reducing power abuse. Nonetheless, the potential of transparency in the domain of consumer contracts is untapped. This Article suggests utilizing the power of transparency to increase consumer access to justice, better distribute technological gains between businesses and consumers, and deter sellers from breaching their consumer contracts while exploiting consumers' inferior position. In doing so, this Article focuses on what we dub "Hidden Contracts." Part I conceptualizes the idea of hidden contracts. It first defines hidden contracts as consumer form contracts that firms unilaterally modify and subsequently remove from the public sphere, despite being binding on consumers. Thereafter, the Article delineates the considerable social costs of hidden contracts. Given these social costs, Part II discusses our empirical study of hidden contracts. The results of this study indicate that leading firms that supply goods and services to billions of online consumers worldwide routinely employ hidden contracts to the detriment of consumers and society. Against this background, Part III proposes introducing a novel contract transparency duty. It further explains how to design this duty to counter firms' incentive to employ hidden contracts. Next, Part IV tackles key objections to our proposal. Concluding remarks follow. [ABSTRACT FROM AUTHOR]

This paper is concerned with the risk management practices of an electricity retailer motivated by the Dutch electricity market. We examine the effectiveness of the existing base- and peak-load futures contracts as a risk management tool for the electricity retailers. We analytically characterize the retailer's optimal hedging policy as a function of the serial correlation of the prices and the demand profiles of its customers. We find that the retailer typically over-hedges in the futures market, and the over-hedging amount increases when both base- and peak-load contracts are used. Our findings indicate that although the existing contracts in the futures market are quite efficient to replicate the exposure from profiled customers, when industrial consumers and renewable generation are included to the retailer's portfolio, the effectiveness of such contracts decreases substantially. In our motivating example, hedging the risk of the profiled customers with base-load contracts, the firm may reduce the variance of its cash flows by 85.9%. In addition to the base-load contracts, including peak-load contracts into the hedging portfolio of the retailer increases the efficiency of hedging to 89.3%. However, when we consider the aggregate portfolio of the retailer including profiled customers, industrial consumers and renewable contracts, the efficiency of hedging through the existing futures contracts goes down as low as 32.8% during certain periods. [ABSTRACT FROM AUTHOR]

Smart contracts, as a newly developed technology, may radically re‐shape traditional contractual relationships, transferring the power to perform and enforce from contractors to robots. This paper provides a framework which seeks to ensure that this transfer of power does not undermine vital consumer law values. The starting point is the well‐accepted idea of consumer law being based on values aiming to protect consumers as weaker parties in their relationships with traders and this will be built on using various new arguments. First it will be argued that any brave new world of smart contracts will still need the law to provide the sorts of rights it already does: smart contracts may enhance data preferences and improve choice up to a point, but they cannot produce market choices replacing the need for such legally mandated rights. Next it will be shown that to reflect underpinning protection values, some such rights must operate in particular ways. This includes rights concerning information and contract cancellation, conformity standards, remedies, and unfair terms: 'time sensitive' rights that must be available at certain stages of the relationship. [ABSTRACT FROM AUTHOR]

Modern consumer contracts are the bane of contract law and theory. Freedom of contract justifications are premised on party autonomy and transactional efficiency, but theories justifying contract enforcement fail to explain why the law should treat company-crafted terms as presumptively binding on consumers. Consumer protection advocates point out that lower thresholds for manifesting assent endorsed by the recent Restatement of the Law of Consumer Contracts may result in consumers being bound to terms of which they were reasonably unaware. Other scholars point out that mere knowledge of company terms and conditions does almost nothing to protect consumers in any case because consumers are powerless to shape those terms. Indeed, in the face of negotiation impotency, it is inefficient and illogical for consumers to read, understand, and analyze a company's boilerplate terms even when they are made available. Attempting to fit traditional contract rules to the modern consumer contract context results in a body of contract law that combines fantastical notions of assent with increasing government policing of ostensibly private contract terms. Here is a better way. This Article advocates for a novel approach to consumer contract law, one that that avoids pitting fairness against efficiency. A more tailored contract baseline for consumer contracts starts by recognizing the distinct shape of the modern company-consumer relationship. Traditional contract law is premised on a "horizontal" relationship formed between parties who can each provide some contractual input. Consumers, however, lack the ability to provide direct contractual input for the majority of their transactional relationships. Online terms and conditions are created by and for companies; consumers simply acquiesce to them as a cost of doing business. Thus, the company-consumer relationship is a hierarchical, "vertical" relationship. Applying traditional horizontal contract law to vertical company-consumer relationships inhibits multi-party input and erodes contract legitimacy. In the context of a vertical relationship, the legal baseline must look outside the unilaterally controlled boilerplate to determine the parties' contract content. A better tailored approach to consumer contracts would treat a consumer's choice to do business with a company as legally distinct from assent to that company's online terms. Consumers choose transactional relationships, not online terms. Furthermore, the market provides inadequate variety among various companies' boilerplate terms. Contract law can provide a two-step pathway for consumers to shape the terms of their contracts. First, the law must disentangle the choice of making a transaction and a commitment to be bound to boilerplate terms. Then, although the law can deem consumer assent to terms necessary for the transaction's infrastructure (constructive terms), it must find boilerplate terms that exist solely to reduce consumers' default legal rights (destructive terms) legally ineffective. Tort law's liability allocation defaults, contract law's basic principles, and our legal system's dispute resolution process should persist notwithstanding mere boilerplate to the contrary. Consent to the transaction divorced from assent to destructive terms would prevent controlling parties in vertical relationships from dictating private governing rules. Existing default legal rights are a better approximation of consumer contracting preferences. This Article sets out theoretical justifications for altering the legal baseline for consumer contracts empowering consumer-preferred inputs. [ABSTRACT FROM AUTHOR]

We compare two polar approaches to domestic arbitration—the centralized U.S. policy on arbitration, which permits extensive use of arbitration, and Israel’s restrictive policy on arbitration, which is inspired by European policy yet takes an even more cautious approach. Focusing on consumer agreements, employment contracts, class action, and interim relief, we show that comparing the two approaches can help uncover a middle path to arbitration, which may hearken back to the requirement of consent, constructed anew. The article provides a theoretical basis for consent in arbitration as a moderating force that can ground this method of dispute resolution and conserve its benefits. Critics of arbitration have often proposed steps to liken it to adjudication (e.g., in terms of discovery and rules of evidence) to rein in potential imbalances. We suggest a different approach, which prevents its transformation into an institutionalized form of adjudication while reducing the potential for its abuse. [ABSTRACT FROM AUTHOR]

Directive 93/13/ECC does not regulate prescription periods. However, some parameters can be drawn from the effectiveness principle that national legislation must consider in order to comply with Directive 93/13. This paper argues that the commencement of prescription for restitutionary claims following the unfairness of a term within the Directive 93/13 is determined with a reasonable discoverability criterion concerning the unfairness of the term. A consumer is able to discover the unfairness from the moment when a litigation context concerning the term in question arises. The commencement of prescription cannot be postponed until a court of last resort has decided over the issue on the unfairness. 182 [ABSTRACT FROM AUTHOR]

Campbell's theory of the morality of contract law clearly rejects this Marxist account because he sees the essence of contract law in mutual recognition, which is the basis of society. Campbell approves of the way that this freedom of contract and neo-classical economics is free from morality in the sense of moral standards that dictate which choices made when entering contracts are morally better than others. That is why many people think that the classical law of contract is as it is: the classical law of contract is derived from Pareto Optimality, as Campbell says it is, precisely because it is founded on solipsistic self-interest not mutual recognition as Campbell claims. Campbell insists, however, that the requirement of agreement in contract law is about the establishment of "relationships of mutual autonomy" (p. 27). [Extracted from the article]

To systematically investigate factors affecting consumers' restaurant patronage decisions during the COVID-19 pandemic, this study drew on the Protection Motivation Theory (PMT) to (1) evaluate how threat and coping appraisal (i.e., PMT factors) may vary based on socio-demographics and COVID-19 situational characteristics, and (2) determine if PMT factors influence actual restaurant patronage behaviors. Furthermore, the current study examined consumers' perceptions of health-protective actions that restaurateurs could take to minimize consumer risk of contracting COVID-19. Data were collected from U.S. adults (N = 627) using an online crowdsourcing platform in early May 2020. Findings showed significant relationships between socio-demograhic factors and perceived severity and/or vulnerability to COVID-19, along with concerns of coping with the virus for in-restaurant dining. For take-out/delivery patronage, coping concerns were greater for those with lower education levels and those with more health concerns than their counterparts. Furthermore, consumers' higher levels of coping appraisal predicted their higher take-out/delivery frequency. Results also suggested actions that restaurateurs could take that would influence consumers' restaurant patronage decisions. This study provides new insights related to PMT in the context of restaurants in a pandemic situation and practical information for restaurateurs to recover and prepare for future pandemics or similar crises. [ABSTRACT FROM AUTHOR]

A foreign business is subject to consumer jurisdiction and applicable law rules provided in Articles 17–19 Brussels Ibis Regulation and Article 6 Rome I Regulation only if it conducts commercial activities targeted at the consumer's home country. This paper aims to answer the question what constitutes targeting activity test, especially in the context of the Internet and E-commerce, for the purpose of applying such pro-consumer private International law rules. To this end, it is necessary to examine the non-exhaustive list of factors given by the CJEU in the influential Pammer and Hotel Alpenhof judgment. This paper argues that no single factor is decisive, instead, an overall assessment should be conducted. Moreover, the targeting test should perhaps be supplemented by the dis-targeting test, which focuses more on the ring-fence mechanism. In this regard, apart from asking consumers individually about their whereabouts, it can be done by exploiting geo-location and geo-blocking technologies to technologically block unsolicited consumers. [ABSTRACT FROM AUTHOR]

Millions of consumers are routinely subject to non-transparent consumer contracts that undermine fundamental contract law notions. Such contracts leave consumers uninformed and disempowered, encourage unethical behavior, and undercut the ability of legal and extralegal forces to discipline firms. This Article develops a new holistic framework for understanding these opaque consumer contracts. To conceptualize the various non-transparent ways in which firms use consumer contracts, the Article develops the notion of "Dark Contracts." Part I of this Article explains what Dark Contracts are. It delineates how firms design and employ non-transparent tools at almost every possible contractual juncture. Part II places the problem of Dark Contracts in a wider context, arguing that the sum of these non-transparent components is greater than its parts. Dark Contracts not only create pockets of non-transparency, but also produce an in terrorem effect. Dark Contracts harm consumers and emasculate the ability of institutional actors to scrutinize firms' use of power. Such Contracts also interfere with the market's ability to offer effective reputational systems that discipline firms and facilitate unethical behavior. Part III calls for introducing transparencyrelated concepts to the law of consumer contracts. It explains the potential and limitations of utilizing transparency principles in policing consumer contracts. It further argues that policymakers should design such principles to (1) better scrutinize firms' practices; (2) empower consumers to make better-informed decisions; and (3) ensure that firms' unethical contractual behavior is not the norm. [ABSTRACT FROM AUTHOR]

The article seeks to build a strict justification of the non-negotiated clauses that empower the supplier to unilaterally modify the terms of the consumer contract in Chilean law. After critically reviewing the state of the matter in the Chilean doctrine, it is proposed that the assumptions that enable a unilateral modification of the consumer contract should refer to events that are beyond the supplier's sphere of control, which are of unlikely occurrence and that make specific performance impossible or excessively onerous for him. Subsequently, the approach to the matter carried out by Chilean jurisprudence is analyzed, examining by way of example especially that relating to contracts on financial products or services, in which a particularly protective tendency of the adherent's interest is noted. [ABSTRACT FROM AUTHOR]

Timeshare contracts are expressly protected as consumer contracts under Article 6(4)(c) Rome I. With the extended notion of timeshare in Directive 2008/122/EC, the question is whether timeshare-related contracts should be protected as consumer contracts. Additionally, unlike Article 6(4)(c) Rome I, Article 17 Brussels Ia does not explicitly include timeshare contracts into its material scope nor mention the concept of timeshare. It gives rise to the question whether, and if yes, how, timeshare contracts should be protected as consumer contracts under Brussels Ia. This article argues that both timeshare contracts and timeshare-related contracts should be protected as consumer contracts under EU private international law. To this end, Brussels Ia should establish a new provision, Article 17(4), which expressly includes timeshare contracts in its material scope, by referring to the timeshare notion in Directive 2008/122/EC in the same way as in Article 6(4)(c) Rome I. [ABSTRACT FROM AUTHOR]

U.S. companies are increasingly drafting consumer contracts that are complex and unreadable, thus making it difficult for many Americans to comprehend terms of use that apply to goods and services. Many U.S. companies are creating terms of use that are, in effect, rights-foreclosure schemes. Many consumer agreements cap damages at a nominal amount, disclaim all warranties, limit remedies, and impose mandatory arbitration clauses and class action waivers. U.S. courts enforce these unfair mass-market contracts with few exceptions. My proposal for a New Deal for Consumer Contracts, as described in this Article, would impose a more exacting readability standard, enforcing agreements only if they were drafted at a reading level of the eighth grade or below in order to protect consumers against inadvertently agreeing to unfair standard contract terms such as unfair choice of law and forum clauses, limits on recovery, predispute arbitration, and disclaimers of all significant remedies. The New Deal for Consumer Contracts would invalidate unfair and deceptive consumer clauses--a reform that would synchronize U.S. consumer law with the mandatory consumer laws of the twenty-seven countries of the European Union. [ABSTRACT FROM AUTHOR]

What is wrong with commercial surrogacy that justifies its prohibition? This article explores how the commodification argument has been used in the philosophical literature to substantiate the moral and legal condemnation of commercial surrogacy. I discuss three arguments available in the literature: (i) the incommensurability argument, (ii) the alienation argument, and (iii) the negative effects argument. I introduce a fourth argument: (iv) the consumer contract argument. I argue that while (i), (ii), and (iii) cannot offer strong moral reasons to justify the moral inadmissibility of commercial surrogacy, (iv) can. The consumer contract argument holds that the asymmetric distribution between rights and obligations that justifies the consumer contract model results in the intended parents and the surrogacy agencies (if any) unfairly benefiting at the expense of surrogates. I argue that (iv) provides reasons in favor of state intervention, but not in favor of a ban on commercial surrogacy. [ABSTRACT FROM AUTHOR]

Homeownership is often tied to cultural conceptions of model citizenship, yet African Americans have long faced structural barriers to owning a home. Credit discrimination has often constrained black homeownership. However, missing from accounts of race, credit, and homeownership is how people purchase homes without mortgages. Through an analysis of public deed and mortgage records in Baltimore, I show that informal housing transactions – unregulated transfers outside of the mortgage market – are primarily located within majority-black neighborhoods. Using data from interviews with 336 homeowners, renters, and real estate investors, I show that informal markets put buyers in a uniquely vulnerable position. The exchange process in informal markets often consists of buyer and seller, with no third-party actor providing oversight to the transaction. Consequently, homebuyers face uncertainty over legal title and the value of the home, making it impossible to make informed decisions about the costs and benefits of homeownership at the time of purchase. Those who purchased from out-of-network real estate investors faced the harshest consequences, with sellers often structuring contracts to disadvantage consumers. Recent reports show that millions have purchased homes without institutional credit. It is worth examining how unregulated housing markets in neighborhoods of concentrated disadvantage contribute to racial inequalities. [ABSTRACT FROM AUTHOR]

The evolution of the law on unfair contractual terms contained in contracts concluded with consumers and the change in the function of equity of the contract law of consumer, lead to discussions regarding the approach of the notion "consumer". The consumer, as well as the competition, contributes to the general regulatory objective of the internal market, so that both claim legal provisions to ensure effective protection but also to stimulate economic activity, which leads to the realization of a right of consumption of a hybrid nature, with more severe implications and sanctions. The present paper aims to outline an analytical framework of the defining ideas of this notion, with a special look at the stretch in time, under the auspices of the judicial dialogue between our country and the Court of Justice of the European Union. [ABSTRACT FROM AUTHOR]

With the Omnibus Directive (EU) 2019/2161 of the European Parliament and of the Council some directives on consumer protection have been amended. In this framework, Directive 93/13/EEC on Unfair Terms in Consumer Contracts, Directive 98/6/EC on Consumer Protection in the Indication of the Prices of Products Offered to Consumers, Directive 2005/29/EC on Unfair Commercial Practices and Directive 2011/83 on Consumer Rights have been amended. In this study, which mainly aims to address the amendments made in the Directive 2005/29 on Unfair Commercial Practices, the amendments to the German Unfair Competition Code that entered into force on 28.5.2022 and the amendments to the Commercial Advertising and Unfair Commercial Practices Regulation in Turkish law that entered into force on 1.3.2022 will be evaluated comparatively. [ABSTRACT FROM AUTHOR]

Adhesion contracts have a strong likelihood of being unconscionable. The laws and principles are further complicated by the introduction of electronic contracts, specifically electronic consumer contracts. The paper touches upon the duty to read doctrine in contracts and electronic contracts. While the doctrine of unconscionability has evolved it has been playing catch up with the demands of consumers. This paper compares the application of this doctrine in the United States (US), the United Kingdom (UK), and India. The paper also proposes recommendations for consumers and the development of laws. [ABSTRACT FROM AUTHOR]

Most individuals strive to satisfy every obligation laid out in standard form contracts such as mortgages, insurance plans, or credit agreements. Sophisticated parties, however, adapt and modify their obligations during contract performance by negotiating for lenient treatment and taking advantage of unclear terms. The common law explicitly authorizes variance from standardized contract terms during performance. When the same standard terms create value for sophisticated individuals and destroy value for others, the result is contractual inequality. Contractual inequality has grown without scrutiny by courts or scholars, enabling regressive redistribution of resources and creating economic inefficiency by sowing distrust in markets for consumer contracts. To document the magnitude of contractual inequality, this Article provides novel empirical evidence from a case study of residential mortgage contracts. Data from a large nationwide sample show that many mortgage servicers choose not to utilize their power to foreclose on a borrower in default, with more than one-third of nonpaying borrowers avoiding foreclosure. Servicers disproportionately foreclose on borrowers in poor neighborhoods, regressively redistributing over $500 million in wealth to high-income communities each year. Moreover, servicers’ unfettered freedom to choose who undergoes foreclosure may have reduced the value of mortgages to consumers, increasing market inefficiency. Courts and regulators need not turn a blind eye to contractual inequality, allowing private market forces to determine the exercise of contract rights. This Article argues that lawmakers should gather information about inequalities in contract performance and disseminate such data to private and public enforcement authorities. By bringing these inequalities to light, lawmakers can take a first step toward more efficient contract markets and a more equal society. [ABSTRACT FROM AUTHOR]

The purpose of this paper is to analyse the foundations of Roman law that have crystallized around different legal principles that currently shape the legal-substantive regime of distance contracting with consumers in the framework of the EU. In particular, we will deal with the principles that govern contracts from their genesis and subsequent development, such as: a) good faith as an inspiring principle of perfection (art. 1.258 and 1.262 of the Civil Code) intended to inform the contract (art. 97 and 98 of the Revised Text of the General Law for the Defence of Consumers and Users, hereinafter, TRLGDCU); b) and the right of withdrawal as an exception to pacta sunt servanda or fulfilment of what has been agreed (art. 102 TRLGDCU). [ABSTRACT FROM AUTHOR]

This Article empirically examines whether a computational language model can read and understand consumer contracts. In recent years, language models have heralded a paradigm shift in artificial intelligence, characterized by unprecedented machine capabilities and new societal risks. These models, which are trained on immense quantities of data to predict the next word in a sequence, can perform a wide range of complex tasks. In the legal domain, language models can interpret statutes, draft transactional documents, and, as this Article will explore, inform consumers of their contractual rights and obligations. To showcase the opportunities and challenges of using language models to read consumer contracts, this Article studies the performance of GPT-3, the world's first commercial language model. The case study evaluates the model's ability to understand consumer contracts by testing its performance on a novel dataset comprised of questions relating to online terms of service. Although the results are not definitive, they offer several important insights. First, the model appears to be able to exploit subtle informational cues when answering questions about consumer contracts. Second, the model performs poorly in answering certain questions about contractual provisions that favor the rights and interests of consumers, suggesting that the model may contain an anti-consumer bias. Third, the model is brittle in unexpected ways. Performance in the case study was highly sensitive to the wording of questions, but surprisingly indifferent to variations in contractual language. These preliminary findings suggest that while language models have the potential to empower consumers, they also have the potential to provide misleading advice and entrench harmful biases. Leveraging the benefits of language models in performing legal tasks, such as reading consumer contracts, and confronting the associated challenges requires a combination of thoughtful engineering and governance. Before language models are deployed in the legal domain, policymakers should explore technical and institutional safeguards to ensure that language models are used responsibly and align with broader social values. [ABSTRACT FROM AUTHOR]

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into Kafkaesque customer service queues--and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms' innovations in their contracts, shifting governmental regulations, and consumers' unpredictable behavior. Given the complexity of servicing, even when firms invest significantly in technology, it will inevitably produce mistakes. When firms skimp on their servicing technology, errors that harm consumers become even more likely. And even if it were possible to build perfect servicing technology, the costs that firms would pass on to consumers may outweigh the benefits. The challenge, then, is how to reduce customer harm, accepting that perfect servicing is neither possible nor desirable. This Article argues that structural improvements to consumer contracts can make them more resilient to errors. Far from being new, these structural improvements have long been recognized in contract theory. But the resulting theoretical insights have not been applied to modern consumer financial contracts. Specifically, modularity and formalities improve resilience by mitigating the complexity of servicing, regulation, and consumer behavior. While mitigating complexity may reduce errors ex ante, the bigger payoff is in simplifying customer redress if and when errors occur. Intervening in the structure of consumer financial contracts is an underappreciated tool for achieving substantive consumer protection. [ABSTRACT FROM AUTHOR]

Current approaches to consumer standard form contracts generally assume that aggrieved consumers can adequately detect and challenge exploitative terms and that vigilant courts can effectively scrutinize them. Some even believe that market forces and reputational constraints can deter firms from incorporating exploitative terms into their form contracts or dissuade them from actually relying on such terms. Criticizing these assumptions, this Article calls for a conceptual shift toward the problem of exploitative consumer contracts. This Article suggests supplementing the current means of addressing exploitation in consumer contracts with a dynamic preventive model of administrative oversight. Specifically, this Article proposes a professional system of public supervision over the content of consumer form contracts. This Article demonstrates how such a mechanism, if shrewdly designed, can cost-effectively tackle the widespread use of unfair, unconscionable, or legally invalid terms. Although not a panacea, the proposed regulatory regime has the promise of shifting the main burden of tackling exploitative boilerplate from the currently feeble and ineffective system of private enforcement to a sophisticated and robust scheme of administrative scrutiny. [ABSTRACT FROM AUTHOR]

Opponents of mandatory arbitration in consumer and employee contracts have filed numerous actions in courts across the United States, including the Supreme Court of the United States, challenging its legality. However, these attacks on mandatory arbitration under the Federal Arbitration Act (FAA) have consistently fallen short. As a result, the use of mandatory arbitration provisions in employee and consumer contracts in the United States has significantly increased over the past two decades. This has also led to a contentious national debate among jurists, legal scholars, and consumer and employee advocates. This Article seeks to end mandatory arbitration at the source by invoking a cost-benefit analysis that businesses should consider. This Article relies on both policy and empirical data to support the argument that it is a better business decision to remove mandatory arbitration provisions from contracts and replace them with provisions that give consumers and employees the option of either litigation or arbitration remedies. In fact, over the past two years, companies like Amazon and Google have already started to make such a shift. [ABSTRACT FROM AUTHOR]

In recent years, the Court of Justice of the European Union has issued a number of judgments addressing the issue of consumer protection in connection with the use of unfair terms by banks in loan agreements indexed with a foreign currency exchange rate. Most of them have concerned issues of exchange rate risk and exchange rate differences between the purchase and sale rates of a given currency applied by the bank. This article analyzes the recent ruling by the Court of Justice of the European Union in the Dziubak case, which was initiated by referring questions for a preliminary ruling by a Polish court. The article's purpose is to assess the position taken by the CJEU in this respect and its significance for consumers in Poland. Particular attention was paid to the considerations with regard to the possibility of replacing unfair provisions with general provisions and assessing the consumer's awareness of the consequences of declaring a contract invalid. The aim is to examine the issues that were dealt with by the Court of Justice of the European Union in the Dziubak case, including – in particular – the answer to the question of whether the issues discussed by the CJEU had already been considered in its previous jurisprudence and whether it presents new, previously unknown legal consequences of the inclusion of unfair contract terms in loan agreements. [ABSTRACT FROM AUTHOR]

Since the tax of carbon emission is popular and consumers are exhibiting low-carbon preference, the green manufactures have to spend more extra cost on investing carbon emission reduction (CER) technology to decrease the carbon emission. To encourage the manufacture's CER investment efforts, this paper explores the impact of carbon tax, CER cost, and consumers' low-carbon preference on low-carbon decision-making and designs a revenue-sharing contract (RS) by constructing Stackelberg models. Based on the theoretical and numerical analysis, this paper finds that the supply chain would benefit from the increment of consumer's environmental awareness but be depressed by the increase of the CER investment cost factor. Additionally, there exists a unique optimal carbon tax to make CER degree the maximum. Furthermore, RS can effectively promote manufacturers to reduce carbon emissions and also improve the supply chain efficiency. [ABSTRACT FROM AUTHOR]

Consumer contracts are a pervasive legal tool that govern many of our daily activities. Yet, consumer contracts are routinely modified by businesses after customers accept them. Common modifications include, for example, a change in fees, alteration of a dispute resolution clause, or revision to the firm's privacy policy. In fact, unilateral modifications can affect virtually every aspect of a contract. While the literature widely discusses the problem of ex ante consent to consumer contracts, it does not adequately address the problem of ex post consent to unilateral modifications. But the practice of unilateral changes to consumer form contracts comes with significant detriments and social costs. Despite these costs, there are no systematic empirical studies exploring this phenomenon. This Article aims to fill this gap by empirically examining the frequency, mechanics, and degree of transparency of unilateral change mechanisms in consumer contracts. This Article examines 500 sign-in-wrap contracts of the most popular websites in the United States that use such agreements. We find that the vast majority of consumer contracts in our sample are "sneak in" contracts--that is, they allow firms. unilateral and broad discretion to covertly change consumers' rights and obligations after consumers accept them. This study's findings raise concerns as to whether sneak in contracts are aligned with prominent core values and principles of contract law, such as consent, promise, reliance, consideration, freedom, choice, empowerment, and community. The study thus calls for greater transparency in the law that governs the modification of consumer contracts. [ABSTRACT FROM AUTHOR]

This Article seeks to resurrect an ancient technology ®r enhancing the welfare ojothers: peer advice. For decisions as variable as whether to eat a marshmallow or which dialysis treatment to undergo, advice-giving is a powerful and as-yet-unrecognized debiasing tool. In fact, it is one of the most comprehensive and effective debiasing tools ever studied. People who succumb to motivated reasoning, hyperbolic discounting, and a host of other biases offkr advice that is untainted by them. When advising others, we are more creative, process in®rmation and probability more rationally, and see the forest rather than the trees. Far from the blind leading the blind, our friends andfilmily see us and our situation far more clearly than we do. Currently, peer advice is an entirely untapped resource. Promoting, incentivizing, or even sometimes mandating advice can help us improve our decision-making in numerous contexts such as consumer contracts, health care, education, andfinancial planning. [ABSTRACT FROM AUTHOR]

The Court of Justice of the European Union has held that the exception to the right of withdrawal from contracts for the supply of goods made to the consumer's specifications is inherent to the very subject matter of such contracts, and therefore this exception can be invoked against the consumer regardless of whether or not the seller has begun the performance of the contract. [ABSTRACT FROM AUTHOR]

This paper shows the impact of the COVID-19 crisis in the field of consumer contracts. It points out the exceptional emergency regulations which have sought to attend, not to the consumer, but the most vulnerable people and companies, also in the contractual aspect. It then shows the dependency of national Consumer Law on that created in the European Union, highlighting that the latter is not sufficiently agile and flexible to respond to a catastrophe of the magnitude of the pandemic. Finally, it shows how the experience of the last few months and the challenges that lie ahead in the immediate future make it possible to foresee a new Consumer Law in which, in the author's opinion, multiple differentiations will need to be done. [ABSTRACT FROM AUTHOR]

The consequence is that the Court of Justice of the European Union has chosen to reduce the effectiveness of EU consumer law in Dziubak. Finally, the argumentative structure of the reasoning of the Court is hard to reconcile with the "settled case law of the Court" holding that 'it is necessary to interpret[a]provisionnotonlybyreferencetoitswordingbutalsobyreferenceto the context in which it occurs and the objectives pursued by the rules of which it ispart'. 10 It is therefore relevant to EU contract law which finds its main justification in the facilitation of trade within the Union through the approximation of national contract laws. [Extracted from the article]