B2C CONTRACTS By Sara Landini

Why consumers need protection  Complicated legal language of contract;  Access to the full terms may be difficult;  Pressure to sign;  Information asymmetry  Standardization of mass contracts and lack of consumer autonomy

Standard contracts and Consumers autonomy Standard contracts are contracts between two parties where the terms and conditions of the contract are set by one of the parties, and the other party has a little or no ability to negotiate terms. UNFAIR CONTRACTUAL TERMS

European protection against unfair terms According to Directive 93/13 a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. Unfair terms are considered to not binding.

Some examples of unfair terms excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier; inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non- performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him; making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone;

Consumers’ protection remedies In regard to consumer protection remedies we can remember a famous distinction: preventive measures restitution punishment See Remedies for Consumers Protection: Prevention, Restitution or Punishment, by D. C OHEN, in Journal of Marketing, 1975, p. 24 ff.

Tort law and breach of B2C contract Depending on the nature of the breach, consumers may find several different remedies. Damages are monetary awards, and they include: Compensatory Damages: These are damages for a monetary amount that is intended to compensate the non- breaching party for losses due to the breach. There are two types of compensatory damages: Expectation Damages: Damages intended to cover what the injured party expected to receive from the contract. Consequential Damages: These are intended to reimburse the aggrieved party for indirect damages besides the contractual loss; for example, loss of business profits due to delay of the flight.

Tort law and breach of B2C contract Liquidation Damages: Damages that are specifically provided for in the contract. Punitive Damages: Intended to punish the breaching actors and to deter them from committing future breaches. Restitutionary Damages: These are not really legal damages per se, but rather are an equitable remedy to prevent the breaching party from being unjustly enriched.