scholarly journals Contracts and Automation: Exploring the Normativity of Automation in the Context of U.S. Contract Law and E.U. Consumer Protection Directives

2016 ◽  
Vol 9 (14) ◽  
pp. 15-42
Author(s):  
Daniel Barnhizer
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Contract Law ◽  
Civil Code ◽  
Human Beings ◽  
Ethical Concerns ◽  
Consumer Contracts ◽  
The Common ◽  
Unfair Terms ◽  
Automated Processes

Given a choice between two systems of contract rules, a court or legislature may have a normative obligation to adopt the rule that is more susceptible to coding and automation. This paper explores the ramifications of that normative proposition through the lens of multiple contract doctrines that traditionally involve “messy” judgments or multiple interacting judgments regarding which human beings are – arguably – capable of making finely nuanced analyses. Using the common law doctrine of unconscionability and Polish Civil Code Article 385 on unfair terms in consumer contracts, this paper explores the differences between contract rules that require human analysis versus those that can be applied with strong reliability by automated processes. Finally, the paper analyzes some of the potential pitfalls of this normative proposition in light of technological, economic, and moral/ethical concerns.

13. Controlling contract terms

Contract Law ◽  
2019 ◽  
pp. 371-403
Author(s):  
TT Arvind
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Freedom Of Contract ◽  
Liquidated Damages ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Unfair Terms ◽  
Formal Requirements ◽  
Statutory Regulation

This chapter examines how the law regulates contract terms, with particular emphasis on rules that are intended to protect weaker parties. It begins with a discussion of the limits of freedom of contract and proceeds by assessing the role played by formal requirements, such as the requirement that contracts be in writing. It then considers how the law regulates contract terms which seek to alter the liability that one party will have in the event of breach. More specifically, it looks at exclusion clauses in the common law and the statutory regulation of such clauses, along with liquidated damages, contractual remedies, and the rule against penalties. It also explores the extent to which consumer protection law restricts the terms that can be included in consumer contracts, especially when dealing with the problem of unfair terms.

Brownsword, R and Howells, G, ‘The implementation of the EC Directive on Unfair Terms in Consumer Contracts – some unresolved questions’ [1995] JBL 243. Brownsword, R, Howells, G and Wilhelmsson, T (eds), Welfarism in Contract, 1994, Aldershot: Dartmouth. Burrows, A, (ed), Essays on the Law of Restitution, 1991, Oxford: Clarendon. Burrows, A, The Law of Restitution, 1993, London: Butterworths. Burrows, A, Understanding the Law of Obligations, 1998, Oxford: Hart. Burrows, A, ‘Free acceptance and the law of restitution’ (1988) 104 LQR 576. Carr, C, ‘Lloyd’s Bank Ltd v Bundy’ (1975) 38 MLR 463. Cheshire, G, Fifoot, C and Furmston, M, Law of Contract, 13th edn, 1996, London: Butterworths/Tolley. Chitty (Guest, AG (ed)), Contracts: General Principles, 27th edn, 1994, London: Sweet & Maxwell. Coase, R, ‘The problem of social cost’ (1960) 3 Journal of Law and Economics 1. Collins, H, Law of Contract, 3rd edn, 1997, London: Butterworths. Collins, H, ‘Good faith in European contract law’ (1994) OJLS 229. Cooke, PJ and Oughton, DW, The Common Law of Obligations, 3rd edn, 2000, London: Butterworths. Coote, B, Exception Clauses, 1964, London: Sweet & Maxwell. Coote, B, ‘The Unfair Contract Terms Act 1977’ (1978) 41 MLR 312. De Lacey, J, ‘Selling in the course of a business under the Sale of Goods Act 1979’ (1999) 62 MLR 776. Dean, M, ‘Unfair contract terms – the European approach’ (1993) 56 MLR 581. Duffy, P, ‘Unfair terms and the draft EC Directive’ (1993) JBL 67. Evans, A, ‘The Anglo-American mailing rule’ (1966) 15 ICLQ 553. Fehlberg, B, ‘The husband, the bank, the wife and her signature – the sequel’ (1996) 59 MLR 675.

1995 ◽  
pp. 808-808
Keyword(s):  
Law And Economics ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
European Contract ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Anglo American ◽  
Unfair Terms

13. Controlling contract terms

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Freedom Of Contract ◽  
Liquidated Damages ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Unfair Terms ◽  
Formal Requirements ◽  
Statutory Regulation

This chapter examines how the law regulates contract terms, with particular emphasis on rules that are intended to protect weaker parties. It begins with a discussion of the limits of freedom of contract and proceeds by assessing the role played by formal requirements, such as the requirement that contracts be in writing. It then considers how the law regulates contract terms which seek to alter the liability that one party will have in the event of breach. More specifically, it looks at exclusion clauses in the common law and the statutory regulation of such clauses, along with liquidated damages, contractual remedies, and the rule against penalties. It also explores the extent to which consumer protection law restricts the terms that can be included in consumer contracts, especially when dealing with the problem of unfair terms.

Principles of Internet contracting: Illuminating the shadows

2019 ◽  
Vol 48 (4) ◽  
pp. 208-232
Author(s):  
Caterina Gardiner
Keyword(s):  
United States ◽  
United Kingdom ◽  
Consumer Protection ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Contract Law ◽  
Contract Formation ◽  
The Common ◽  
The Relationship

The common law that applies to Internet contract formation could be said to exist in a penumbra—a grey area of partial illumination between darkness and light—where it may be possible to lose sight of established contract law principles. Internet contracts raise difficult issues relating to their formation that challenge traditional contract doctrine. Analysis of case law from the United States, United Kingdom and Ireland illustrates that the courts have not applied contract formation doctrine in a principled or consistent way. There is a tendency for decisions to be reached for policy reasons, for example, to facilitate the development of e-commerce, or to achieve a result that is considered fair, rather than on sound principles of contract law. There may also be some uncertainty arising from the relationship between statutory consumer protection rules and common law contract formation doctrine. The enforceability of Internet contracts in the common law courts remains unpredictable. This article argues that although Internet contracting may raise distinctive contract formation issues, it is possible for the judiciary to invoke the inherent flexibility of the common law, to take into account the specific characteristics of Internet contracts, while still adhering to established contract law doctrine and maintaining a principled approach.

8. Terms of the contract II: common law and statutory controls on unfair terms

2020 ◽  
pp. 198-227
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
The Core ◽  
Consumer Rights ◽  
Consumer Contracts ◽  
The Subject ◽  
The Common ◽  
Unfair Terms ◽  
Standard Terms

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines potentially unfair terms, including exemption clauses, in a contract. It considers the common law’s response to exemption clauses and other potentially unfair terms, and discusses statutory schemes to regulate them. It covers the Unfair Contract Terms Act 1977 (UCTA) which governs exemption clauses in non-consumer contracts, subjecting them to a requirement of reasonableness where the contract was made on standard terms. It also discusses in detail the Consumer Rights Act 2015 (CRA), which imposes a test of fairness on terms in consumer contracts, apart from the core terms.

Regulating Unfair Terms and Consumer Protection under Taiwan Law

2020 ◽  
pp. 399-412
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Consumer Protection ◽  
Contract Law ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Enforcement Mechanisms ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how the contract law of Taiwan responds to extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or terms in consumer contracts. Attention is also paid to the enforcement mechanisms for measures of consumer protection. The chapter further analyses how the Taiwanese courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Taiwanese courts regulate unfair contract terms in practice.

Unfair Contract Terms Protection in Slovakia

2020 ◽  
Vol 66 (1) ◽  
pp. 163-181
Author(s):  
Monika Jurčová ◽  
Kristián Csach
Keyword(s):  
Law Enforcement ◽  
Empirical Evidence ◽  
Consumer Protection ◽  
Civil Code ◽  
Contract Term ◽  
National Regulation ◽  
Legislative Power ◽  
Legislative Framework ◽  
Consumer Contracts ◽  
Unfair Terms

The unfair contract terms protection in Slovakia is currently regulated by a system of rules in the Slovak Civil Code; the path to the current extent of consumer protection has not been very straightforward. This article analyses the legislative framework on unfair terms, and questions of law enforcement. It further outlines selected issues and empirical evidence in the context of “surprising contract terms,” transparency of a contract term, legislative power of the judiciary, it discusses the controversial of the German approach to resolve conflicts revolving around unfair clauses. The article concludes that the current Slovak regulation of unfair terms in consumer contracts seems to fulfil the requirements set by the UCTD; however, all in all, Slovakia’s national regulation remains fragmented in the Civil Code, the Act on Consumer Protection and special sectoral regulation and supplemented by special procedural regulation.

La nueva perspectiva de la tutela del error en el moderno derecho de los contratos

2014 ◽  
pp. 863
Author(s):  
Rocío Herrera Blanco
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
European Contract ◽  
Legal Effect ◽  
The Common ◽  
The Impact ◽  
European Contract Law

Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Primer accésit Todos los ordenamientos jurídicos europeos prevén normas relativas a la ineficacia de los contratos por vicios del consentimiento, sin embargo, existen entre ellos diferencias bastante significativas, especialmente cuando se comparan el Common Law y los derechos continentales. El presente estudio comparado parte del tratamiento de esta cuestión en la regulación española y se centra en las propuestas que el moderno Derecho de la contratación proporciona en materia de vicios del consentimiento, con particular atención a la figura del error, así como en el Derecho anglosajón, por su eventual influencia en la regulación de estos instrumentos. De manera muy amplia, podríamos decir que el Common Law enfatiza la seguridad de las transacciones, mientras que los sistemas del Civil Law, quizás todavía marcados por las huellas de las llamadas teorías voluntaristas, son más transigentes en permitir la ineficacia de los contratos por defectos del consentimiento. Partiendo de esta premisa, intentaremos evidenciar que las soluciones brindadas por el Derecho anglosajón y los diferentes instrumentos de unificación para la determinación de los efectos jurídicos del error son muy similares. Asimismo, en este trabajo se defiende la tesis de la obsolescencia del Código Civil español en esta materia, y la consecuente necesidad de adaptación del mismo a la actual realidad social, a través de un propósito de homogeneización del Derecho contractual europeo. Para ello, igualmente estudiaremos la Propuesta de modernización del Código civil en materia de obligaciones y contratos, cuya regulación del error, en particular, merece ser objeto de estudio y confrontación de ideas.The legal systems of all european countries provide rules regarding the inefficacy of contracts due to defects of consent, however, there are very significant differences between them, with the deepest differences when Common law and continental systems are contrasted. The present comparative study focuses on the proposals that the modern contract law (PECL, Unidroit Principles, DCFR, CESL) provides with regard to defects of consent and, particularly, to the doctrine of mistake, as well as the Common law for its eventual influence on the regulation of these projects. Very generally, we could say that Common Law emphasizes the security of transactions, while Civil law systems, perhaps still under the impact of the eroded voluntarist theories, are more generous in allowing the inefficacy of contracts due to defects consent. Given these premises, we will try to evidence that the solutions provided by the Common law and the different unifying instruments in order to determinate the legal effect of the defects of consent are very similar. Furthermore, this survey defends the thesis of obsolescence of the spanish Civil Code respecting defects of consent, and the ensuing need for adapting it to the current social reality through a purpose of homogenization of european contract law. Due to this fact, we will also study the Proposal for the modernization of the Civil Code on obligations and contracts, whose regulation of defects of consent, particularly, diserves to be analyzed.

Contents of Contracts and Unfair Terms

2020 ◽  
Keyword(s):  
English Language ◽  
Common Law ◽  
Contract Law ◽  
The Philippines ◽  
Legal Transplant ◽  
The Common ◽  
Common Problems ◽  
Convergence And Divergence ◽  
Unfair Terms ◽  
The Many

Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume III of this series deals with the contents of contracts and unfair terms in the laws of China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam. Typically, each jurisdiction is covered in two chapters; the first deals with the contents of contracts, while the second deals with unfair terms.

The Emperor's Old Clauses: Unincorporated Clauses, Misleading Terms and the Unfair terms in Consumer Contracts Regulations

1999 ◽  
Vol 58 (2) ◽  
pp. 413-436 ◽  
Author(s):  
Elizabeth Macdonald
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Legal Rights ◽  
Director General ◽  
Effective Protection ◽  
Legal Effect ◽  
Consumer Contracts ◽  
The Common ◽  
Unfair Terms

CONSUMERS frequently do not know of their rights and are unwilling to litigate. The powers of the Director General of Fiar Trading under the Unfair Terms in Consumer Contracts Regulations 1994 will often provide more effective protection for the consumer than common law rules. The powers are pre-emptive and enable unfair terms to be removed from standard form contracts, so that consumers simply cease to encounter such terms. Some protection may be provided for consumers by common law rules which allow a finding that clauses are not incorporated or that they do not have the legal effect which they may appear to the consumer to have. However, without knowledge or a willingness to litigate, consumers may be misled by such clauses and terms as to the legal rights generated aand they will not then be able to enjoy their rights to the full. This article examines the extent to which the powers of the Director General can be used to protect consumers from such misleading clauses and terms. It considers the interaction of the Regulations and the common law, the scope of the Regulations, and the application of the Regulation's test of fairness.

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