This chapter examines the unfairness test of the UCTD. It analyses the limitations associated with the contextual approach to standard contract regulation, contrasting this with the standard contract model that adopts an abstract approach without emphasizing the context or status of the parties. The chapter analyses the general clause in Article 3 of the UCTD and contains discussion of the case law of the CJEU on the meaning of 'significant imbalance' and 'good faith'. The chapter also provides recommendations allowing for consistency of decision-making to encourage concretisation of the concepts underlying the general clause and to achieve a more uniform application of the unfairness test. The measures discussed include strengthening and revising the indicative list in the Annex, adopting a European black list of terms, revival of the CLAB database and establishing a European agency for unfair terms. The chapter asserts that these measures are necessary to allow for decisions to have wider impact beyond the confines of individual litigation and to assist with administrative enforcement in the collective interests of consumers, measures that are essential to protect consumers in the online mass market.
Institutional Login
Log in with Open Athens, Shibboleth, or your institutional credentials
Personal login
Log in with your Elgar Online account
-
Front Matter
-
Part I: Standard form contracts and 'unfairness' under the UCTD
-
Part II: The UCTD and transparency in online contracts
-
Part III: Enforcement under the UCTD and suggestions for a revised EU-level approach
-
Back Matter
