
Contents
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Problems with standard form contracts Problems with standard form contracts
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Legislative controls over unfair terms in consumer contracts in English law Legislative controls over unfair terms in consumer contracts in English law
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The implications of unfair surprise and lack of choice The implications of unfair surprise and lack of choice
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An irreducible minimum? An irreducible minimum?
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The Directive The Directive
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Scope of the Directive Scope of the Directive
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Price and definition of the main subject matter Price and definition of the main subject matter
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The test of unfairness The test of unfairness
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Advantages of a grey list Advantages of a grey list
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Transparency Transparency
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Inability to assess risk Inability to assess risk
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Lack of choice Lack of choice
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Transparency as a way of improving the operation of the market Transparency as a way of improving the operation of the market
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Public and collective action Public and collective action
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Public action to prevent the use of unfair terms Public action to prevent the use of unfair terms
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Collective action Collective action
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Assurances and undertakings Assurances and undertakings
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Pre-validation? Pre-validation?
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Conclusion Conclusion
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9 Legislative Control of Fairness: The Directive on Unfair Terms in Consumer Contracts
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Published:August 1997
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Abstract
This chapter deals with the topic that has assumed major importance in modern contract law, namely legislative control of unfairness. It discusses the difficulties raised by standard contracts and argues that usually the issue is not unconscionable behaviour but unfair surprise and lack of choice. It analyses the provisions of the United Kingdom's Unfair Contract Terms Act 1977, as well as the European Commission's Directive on Unfair Terms in Consumer Contracts and its possible impact on English law. In this context, the chapter discusses the conceptual problem raised by the Directive's test of unfairness, which is based, inter alia, on the concept of good faith. It also points to the need to face up to the phenomenon of mass contracting and welcomes the fact that the Directive enables and welcomes collective action by consumer organizations while expressing disappointment with its substantive requirements.
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