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Unfair Terms in Contracts between Businesses

TOWARDS A EUROPEAN CONTRACT LAW, pp. 131-148, J. Stuyck & R. Schulze, eds., Sellier European Law Publishers, 2011

Centre for the Study of European Contract Law Working Paper Series No. 2011-07

Amsterdam Law School Research Paper No. 2011-11

18 Pages Posted: 24 Jun 2011 Last revised: 11 Jun 2012

Martijn W. Hesselink

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

Date Written: 2011

Abstract

This paper examines the main possible rationales for judicial control of unfair contract terms (unequal bargaining, distributive justice, market failure, paternalism, the ethos of the market, comparative law, and the nature of an optional instrument) and concludes that none of them requires a distinction, in this respect, between business to consumer (B2C) and business to business (B2B) contracts. Unfair terms review in B2B contracts, under the same unfairness test as in B2C, is compatible with any plausible rationale for such a review and is even required by several of them.

Keywords: Contract law, commercial law, business law, unfair terms, consumer protection, European private law, paternalism, market failure, distributive justice, unequal bargaining, optional instrument

JEL Classification: K12

Suggested Citation

Hesselink, Martijn W., Unfair Terms in Contracts between Businesses (2011). TOWARDS A EUROPEAN CONTRACT LAW, pp. 131-148, J. Stuyck & R. Schulze, eds., Sellier European Law Publishers, 2011; Centre for the Study of European Contract Law Working Paper Series No. 2011-07; Amsterdam Law School Research Paper No. 2011-11. Available at SSRN: https://ssrn.com/abstract=1871130

Martijn W. Hesselink (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

University of Amsterdam, Faculty of Law
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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