Book Review: Unfair Contract Terms in European Law: A Study in Comparative and EC Law
| DOI | 10.1177/1023263X0901600406 |
| Date | 01 December 2009 |
| Published date | 01 December 2009 |
| Author | Jan M. Smits |
| Subject Matter | Book Review |
16 MJ 4 (2009) 497
BOOK REVIEW
Paolisa Nebbia, Unfair contract ter ms in European law: a study in comparative and EC
law, Hart Publishing , 2007, xix + 225 pp., hardback
One of the key notions of European private law is that there is a continuous interplay
between Europea n law and national law. European directives in the eld of private law
are oen based on the national legal traditions and are also interpreted by national courts
with reference to domestic law. At the same time, European directives inuence domestic
private law in a sometimes very pervasive way. is interplay was studied before, but – at
least to my knowledge – never at the deta iled level of a specic directive. is is why the
present book is such a welcome contribution to Europea n scholarship. It examines EC
Directive 93/13 on unfa ir terms in consumer contracts and its implementation in some
national jurisdic tions as a dialectical process of mutua l inuence.
In chapter 2, the book sets out with a sketch and a short history of the directive,
which has as its main goal to control t he use of unfa ir terms in consumer contracts. A
not individually negotiated contractua l term is not binding on the consumer if, ‘contrary
to the requ irement of good faith, it causes a signi cant imbalance i n the parties’ rights
and obligations u nder the contract’ (Art icle 3). Nebbia aptly describes how t he internal
market provision of Ar ticle 95 EC Treaty is a problematic legal basis for the directive: it
is dic ult to see how a minimum harmonisation directive could benet a commercial
party who fears that it should investigate a foreign law before entering into a contract.
is is because transact ion costs and distortions of competition remain largely unaected
in case of minimum harmonisat ion: parties are st ill confronted with diverse law. What
remains is the arg ument of consumer protection.
e chapters 3 and 4 oer a comparative study of unfair terms regulation in Germany,
France, England and Italy. ey ma ke clear that Italian and Engl ish law are two ends
of t he spectr um when it comes to t he way in which unfair terms are policed . While
English law (at least in name) applies only a formal test (the term is valid if there were no
defects in negotiation and format ion of the contrac t), Italia n law goes di rectly into t he
substantive contents of the contract, applying an external standa rd of contractual justice.
With this in formation, Nebbia is able to turn back to the EC direc tive and discuss some
specic a spects of it a gainst the back ground of national legal systems. Chapter 5 looks
at the subjective s cope of applicat ion of the directive (what is a consu mer and w hat a
professional?), chapter 6 at its application to public services and chapter 7 at its objective
scope of application (which c ontracts and which terms in these contracts are covered?).
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