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Contract Commercial & Consumer Contract Commercial & Consumer Law - Consumer Contracts and Protection 11:00 - 12:30 Friday, 4th September, 2020 Track Contract Commercial & Consumer Law 84 Relational Consumer Contracts: a new Theory? Timothy Dodsworth, Séverine Saintier The University of Exeter, Exeter, United Kingdom Abstract Relational contract theory, although discussed for decades, has not been defined or fully accepted as a doctrine in UK contract law. In recent years however, the theory has taken centre stage in the context of the debate over good faith in commercial law. In Yam Seng v ITC Ltd, Al Nehayan v Ionnis Kent, and more recently Bates v Post Office Ltd, the courts have used the relational contract theory as a conduit to imply a duty of good faith. It provides increased protection to certain commercial relationships for the party that may have significantly invested in the relationship and where closer cooperation is needed. This development of the use of the relational contract theory raises the question of whether it could also be adapted to consumer law to better protect vulnerable consumers, especially in contracts for goods and services, which are essential to consumers. With the contraction of the welfare state and the privatisation of former state monopolies, contracts for water, energy or even mobile phone services would fall within this category. In such essential contracts, and for contracts where the consumer has remained with a supplier for a significant period of time, it could be argued that the agreement is relational in nature, and that additional duties should arise for the supplier. There have long been calls to recognise the social role of consumer law, but these have lacked a juridical basis for intervention. The aim of this paper is to remedy the lacuna of academic discussion and propose to adapt the relational contract theory to consumer contracts, assessing whether the theory would support imposing additional duties on the provider and whether the ensuing social benefits would be sufficient to justify a policy shift. 174 Tailor-made Consumer Protection: Personalization's Impact on the Granularity of Consumer Information. Joasia Luzak University of Exeter, Exeter, United Kingdom. University of Amsterdam, Amsterdam, Netherlands Abstract This paper relies on legal tech mechanisms and legal design principles to propose a re-assessment of the currently applicable legal instrument of mandatory consumer information. In European and English consumer law, information rights remain one of the main consumer protection instruments, despite the widespread criticism of its effectiveness. Many regulators attempted and mostly failed to alleviate the imbalance of power between consumers and traders by introducing changes on the level of information design. That is to say, they employed mainly text manipulation to simplify disclosures. The current lengthy and uncertain content of information duties burdens traders. It is also not consumer-centred. Most consumers feel overwhelmed by the amount of contractual information they receive. The one-size-fit-all approach to disclosures signifies that all consumers receive the same information, regardless whether it is relevant to them personally. Little focus has yet been placed on the technological options enabling information personalisation, which could further impact the product/service design, not just information design. In the legal design pyramid the level of product and service design requires policymakers to design information obligations with two things in mind. First, allowing for an effective achievement of their particular goals. Second, allowing for as optimal consumer experience as possible. This paper argues that this design process has not yet taken place. The current design of mandatory consumer information seems instead to hinder an effective achievement of the objectives that led to their adoption and does not optimise consumer experience with such information. This despite the fact that the rapid and continued development of modern technologies creates new avenues with regards to the provision of consumer information. This paper argues that policymakers should explore how personalised information could improve its understanding on an individual level and to what extent this could influence the legal design of mandatory information obligations. 258 Lack of Transparency and Unfair Terms in Mass-market Online Contracts - An Empirical Analysis Caterina Gardiner National University of Ireland, Galway, Galway, Ireland Abstract This paper presents the results of a study involving a survey of websites offering software products for sale to consumers in the Irish market. The websites were chosen across five categories of popular home software products. The websites were then analysed to assess the extent of likely non-compliance with the transparency requirements of consumer protection legislation; in particular according to the interpretation of the Court of Justice of the EU under the Unfair Contract Terms Directive (UCTD). The websites were examined based on the method of presentation of terms, the length of the terms and their complexity. The study also investigates the contract terms themselves, questioning whether certain routinely used terms would be considered to contravene the substantive fairness test of the UCTD. The findings of the study confirm that in this sector, terms are being presented to consumers in a way that is likely to be in breach of legislative transparency requirements, and that many commonly used clauses would be considered to be substantively unfair within the CJEU interpretation of the UCTD. Whilst the study was carried out in the context of the Irish market, the software websites examined comprise part of a sector where suppliers market their products simultaneously across several countries. Most of the suppliers included in the study enjoy significant market shares in their categories, and all of them have access to, and transact with large numbers of consumers across the EU. The lack of compliance in this sector highlights the extent of the enforcement challenges associated with widespread and cross-border infringements of the UCTD. The paper proposes that the solution may lie in strengthening and improving existing EU-wide cooperation and public enforcement mechanisms. The paper also considers the post-Brexit situation regarding future access of the UK to such enforcement cooperation mechanisms..
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