European Unfairness and American Unconscionability: A Letter from A European Lawyer to American Friends

Final version published in 15 European Review of Contract Law (ERCL) 2019/2, Special Issue on the ALI Restatement on Consumer Contract Law from a European Perspective

Cahiers du CeDIE Working Paper N° 2019/01

29 Pages Posted: 5 Apr 2019 Last revised: 7 Aug 2019

Date Written: February 12, 2019

Abstract

The Unfair Contract Terms Directive (UCTD) and the Common Law doctrine of unconscionability in the United States both pursue the same aim: they seek to protect consumers against abuse of power by traders who are in a position to exploit the asymmetry of the contracting process. However, both sets of rules rest on different premises. In particular, they allocate trust differently between courts and markets. This accounts for deep-running differences despite apparent similarities. This contribution analyses these similarities and differences by commenting on the unconscionability doctrine as expressed in the Draft Restatement of consumer contracts from a European point of view.

Keywords: Unfair contract terms, consumer contracts, unconscionability, UCTD

JEL Classification: K12

Suggested Citation

Sibony, Anne-Lise, European Unfairness and American Unconscionability: A Letter from A European Lawyer to American Friends (February 12, 2019). Final version published in 15 European Review of Contract Law (ERCL) 2019/2, Special Issue on the ALI Restatement on Consumer Contract Law from a European Perspective , Cahiers du CeDIE Working Paper N° 2019/01, Available at SSRN: https://ssrn.com/abstract=3351083

Anne-Lise Sibony (Contact Author)

UCLouvain ( email )

Place Montesquieu, 2
bte L2.07.01
Louvain-la-Neuve, 1348
Belgium

HOME PAGE: http:// https://uclouvain.be/en/directories/anne-lise.sibony

KU Leuven ( email )

Oude Markt 13
Leuven, Vlaams-Brabant 3000
Belgium

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