Band 12, Heft 4

The rules provided by the civil codes on defects in consent were designed at a time when the notion of consumer law did not exist and fairness at the pre-contractual stage was not widely considered as a value worthy of protection. Matters have changed radically in the last three decades. The proliferation of rules protecting consumers on a European level, especially through information duties and rights of withdrawal, and the growing impact of general clauses, has led to a fragmentation of domestic contract law. This clash of different sets of rules is particularly conspicuous in the field of unfair commercial practices as the European legislator has not made provision for specific private law remedies for individual consumers in cases of misleading and aggressive commercial practices. This article addresses the particular issue of the applicability of the law of fraudulent misrepresentation to cases of misleading commercial practices. The purpose is to reconsider ‘fraud’ in terms of a defect in consent, in a manner that is both more in line with the modern features of European contract law and better able to counteract new market strategies based on exploiting cognitive weaknesses. The focus is thus put on the relationship between pre-contractual information duties and defective consent, as well as on some insights of law and economics, which demonstrate that ‘consent theories’ or ‘will theories’ cannot provide precise criteria to indicate when a contract should be void. In conclusion, a possible legislative intervention aiming to substitute the rules on fraud for a set of remedies for violation of information duties is discussed.

The article discusses the relationship between contract law and environmental sustainability. Firstly, it questions whether certain values, which the concept of sustainable development incorporates, are compatible with contract law. Could we consider sustainability goals as implied terms of international business contracts in the absence of an express agreement? Secondly, the article notes and analyzes the process of contractualisation of sustainability objectives in international business contracts. It also examines the current limitations of enforcing sustainability contractual clauses. The conclusion is that contract law should accommodate environmental sustainability as a matter of contractual justice.

This article sheds light on the new legal treatment of inducements, under the revised Markets in Financial Instruments Directive, and seeks to address the question whether or not that regime is beneficial for market participants. Inducements constitute a common practice of day-to-day conduct of business by financial institutions. Accordingly, the rules that define their realm of operation are quintessential for both investment firms and investors. The relevant paradigm of conflicts of interest is used. MiFID II has to be implemented only by 3 January 2018. However, the forthcoming regime on inducements derives from gold-plating practices that are already in place in the UK. An examination and assessment of the impact of inducements policy and their adverse effect on retail investors in the UK is an adequate apparatus to draw parallels from. After highlighting the inherent problems of the EU provisions on inducements, an enhanced framework is designed.

In Granarolo , the European Court of Justice held that a dispute between a distributor and its supplier concerning an action for damages for the abrupt termination of a long-term business relationship, which was not expressed in a framework, umbrella contract, was a matter relating to a contract for the purposes of European private international law. This note explores the wider significance of Granarolo for the meaning of ‘contract’ in European contract law.