THE LEGAL REGIME OF UNFAIR CLAUSES IN COMPARATIVE LAW

Abstract

The concept of unfair clauses has legitimately held the headlines in recent European case law and its relevance is due to the innovative case law solutions and due to the increasing volume of legal contractual relationships which may be considered as being under the legal regime of abusive clauses. The purpose of this article is to analyse unfair clauses in countries with a long history in consumer law, by comparing the manner in which these clauses are stipulated and what each state deems to be unfair. Also, the author’s study is aimed to outline the legal solutions identified by the foreign legislator in comparison with the ones established by the Romanian legislator with respect to unfair consumer clauses. This study is also directed towards emphasizing the necessity of amending the current legal framework regulating abusive clauses, since current technological developments are susceptible of creating situations where the consumer is unlikely to be guarded from a legal point of view. For example, even though contracts concluded online are highly frequent nowadays, consumer protection is still directed towards more classic contracts and is unable to provide for relevant liability in cases when the consumer is subject to intelligent agents acting in cyber space. In particular, the usual lists of clauses deemed as abusive does not reflect and are not exactly applicable to cases when the consumer orders a product or a service through online platforms and therefore, the legal framework must be amended in accordance with common cases usually encountered in today’s modern reality.

Keywords

• unfair clauses
• unfair contract terms
• standard contract terms
• good faith
• contractual balance
• consumer protection rules