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 efficiency;
- 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 European integration.
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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; R. Volante.