The Optional Instrument of European Contract Law: Opting-in through Standard Terms: A Reply to Simon Whittaker

European Review of Contract Law (ERCL), Vol. 8, No. 1, pp. 82-87, March 2012

Max Planck Private Law Research Paper No. 12/10

7 Pages Posted: 8 Jun 2012 Last revised: 3 Sep 2012

Jürgen Basedow

Max Planck Institute for Comparative and International Private Law

Date Written: October 1, 2011

Abstract

In a paper recently published (The Optional Instrument of European Contract Law and Freedom of Contract, ERCL 7 (2011) 371 – 388 at p. 388), Simon Whittaker has criticized the “reduction of an individual consumer’s protection” resulting from the adoption of an optional instrument on European contract law such as the one now contemplated by the European Commission (the “Optional Instrument”). The article contains a number of propositions which will not be tackled here. This comment is confined to consumer contracts and to a pertinent key assumption of Whittaker: that a standard term exercising the option in favour of the Optional Instrument would be subject to judicial review under Directive 93/13 on unfair contract terms in consumer contracts.

This publication is with permission of the rights owner freely accessible due to an Alliance licence and a national licence (funded by the DFG, German Research Foundation) respectively.

Keywords: European contract law, optional instrument, policy considerations, consumer contracts, choice-of-law clauses, Rome I Regulation, Unfair Contract Terms Directive

Suggested Citation

Basedow, Jürgen, The Optional Instrument of European Contract Law: Opting-in through Standard Terms: A Reply to Simon Whittaker (October 1, 2011). European Review of Contract Law (ERCL), Vol. 8, No. 1, pp. 82-87, March 2012; Max Planck Private Law Research Paper No. 12/10. Available at SSRN: https://ssrn.com/abstract=2079005

Jürgen Basedow (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, 20148
Germany

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