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Consumer Law ! Research Review

Published in print: 28 Jul 2019
Elgar Research Reviews in Law ISBN: 9781788111430
Thomas Wilhelmsson and Geraint Howells eISBN: 9781788111447

This research review discusses a compilation of path-breaking and well-cited literature as well as DOI: https://doi-org.proxy.uchicago.edu/10.4337/9781788111447
otherwise original contributions to the international debate on consumer protection. It focuses in
particular on the role and policy of consumer law as well as on the approaches and methods of Buy Book in Print
research in this domain. Key papers regarding the various instruments and issues surrounding
consumer law are explored. The picture that emerges from this title is an area of law that is
profoundly international and multidisciplinary, this piece of literature extends on this and ties
together the featured papers. This review will be a useful tool for consumer law researchers and
valuable to those engaged by this popular practice area.

Literature Review Article: Consumer Law

○ ! Research Review
Published in print: 28 Jul 2019
Thomas Wilhelmsson and Geraint Howells Category: Research Review
DOI: https://doi-org.proxy.uchicago.edu/10.4337/9781788111447
Collection: Law 2019

Subjects: Law - Academic, Consumer Law, Human Rights, International Economic Law, Trade Law

Introduction: Consumer Law – A Discipline with an International and Multidisciplinary Perspective

Thomas Wilhelmsson and Geraint Howells

1. The Emergence of Consumer Law as a Discipline and Its Reasons

1
For as long as there have been enacted laws there have also been typically rules related to the position of the consumer in the marketplace. Rules on weight and measures, usury and food safety can
be found already in ancient laws. Legislation with an intent to protect contract parties in the position of consumers, such as legislation on insurance contracts and hire-purchase contracts has in many de‐
veloped countries existed for more than a century. Still, when enacted they were not thought of as part of something called ‘consumer protection law’ or ‘consumer law’. The history of consumer law as a
particular branch of law is much shorter.

The emergence of ‘consumer protection law’, or as it nowadays usually is called ‘consumer law’, as a more or less specialised legal subdiscipline in most countries happened in the 1960s, 1970s and
2 and the United Nations.3 In some countries a
1980s. These were the first heydays of consumer policy and consumer law debates, fueled inter alia by authoritative statements by President Kennedy
4 whilst in others politics and legal expertise were the main driving forces. In Europe, the European Union (then the European Community) engaged
strong consumer movement pressed for the reforms,
5
more broadly in the area in the 1980s and 1990s.

The birth of consumer law as a legal subdiscipline meant, to a varying degree in different countries, the adoption of new legal concepts and some particular legal principles. The consumer was recognised
as a subject or legal actor that was considered to be in a weaker position in relation to the businesses acting on the consumer market. The basic principle guiding the development of consumer law there‐
fore was a consumer protection principle. The concept of ‘consumer’ became a recognised legal concept. The relationship between ‘consumer’ and ‘business’ became the basic relationship of consumer
6
law. This made possible a legal discourse based on a general consumer protection philosophy not confined to specific contractual relationships, like insurance contracts, alone. The borderlines around
consumer law were not always very clear-cut: sometimes they were linked to the status of the buyer and/or the purpose for which he or she purchased and sometimes to the nature of the goods and ser‐
7
vice. The development of the consumer law principle triggered parallel discussions on the need for protection of small enterprises as well.

There were several reasons for the emergence of this new area of law. In the developed countries society had changed in a way that brought consumer issues and problems to the fore to a greater extent
and in a different way than before. Consumer protection measures were based on insights and claims regarding fundamental changes in the consumer market, related both to the role of businesses and of
consumers as well as to what was offered on the market. The domination of mass products as well as the growth of self-service retail of the products easily left the consumer in a difficult position, en‐
hanced by the rapid growth of the importance of marketing. The large variety of products and the increasing technological complexity of the products also contributed to the challenges facing the con‐
sumer. The consumer issue became more important, as the resources of the consumers to be used on consumption were increasing. On the other hand the power of many of the businesses operating on
the market was also strengthened, through both economic concentration and organised cooperation. The impact of large multinational corporations gained ground.

These were largely challenges of a developed world. Therefore it is rather self-evident that the consumer law movement started in the US and Western Europe where the societal conditions were ripe for
the advent of the new area of law. After the collapse of socialism, which was confronted with different kinds of consumer problems, the new eastern member states of the EU also quickly had to adapt to
8 9
the EU standards. Many developing countries followed suit by developing their own consumer legislation, often inspired by the United Nations Guidelines. The problems encountered in these countries
naturally were in many ways different and graver than those that gave rise to consumer law in the developed world and the gap between law in books and actual practice could here be rather wide. In the
developing countries the satisfaction of basic needs, such as access to clean water and a regular electricity supply, and issues like food safety were often in the foreground. There was much emphasis on
10 The latter was important as there often was a trade-off of environment
rights like the right to basic goods and services, the right to redress, the right to education and the right to a healthy environment.
in favour of access to cheap goods.

11
A critic might label the advent of consumer law in the developed countries as a legal development that serves and supports the shaping of a consumer society. This is a society in which the ultimate
measure of happiness and success is consumption. The growth of consumption in this society is a goal in its own right. The step is short from such a goal-setting to a societal objective of securing a con‐
sumption that is as smooth as possible. In such a perspective the main function of consumer law appears to be the advancement of consumption. By improving information and removing problems one
may lower psychological barriers against decisions to acquire consumer goods or services. A good example of a goal like this is the internal market-related concept of the ‘confident consumer’, a con‐
12
sumer whose confidence to shop across the borders is supposedly enhanced by EU consumer protection regulation.

Even though the advent of consumer law obviously is related to the rise of what is often called the consumer society, consumer law is not bound to work only as a mechanism that strengthens the struc‐
tures of that society. Consumer law may have an emancipatory function as well. The creation of a system in which the citizens are officially invited to lodge claims may in the long run develop the problem-
13 In less democratic countries consumer organisations therefore have not always been well treated and protection of
seeking capacities of citizens more generally, with emancipatory societal effects.
consumer rights can be viewed as challenges to the functioning of society.

The societal functions of consumer law are obviously dependent on the depth of the goals of consumer protection legislation and on the instruments used to promote those goals. Some rules primarily
have the aim of improving the capacity of a supposedly rational consumer to make choices in the marketplace. Typically such rules stress the importance of the consumer receiving sufficient information as
well as the need to counteract deceptive and misleading statements, for example in marketing. Being in conformity with the ideals of the marketplace such rules are often easily accepted, at least as far as
14 However,
information rules do not cause considerable additional costs for the businesses. The basic ethos of EU consumer law has from the beginning been strongly based on the information model.
15
the information model has also from the start been criticised for being irrational, and, as noted later, it is in conflict with what is empirically known about consumer behaviour. This is not to say that in‐
formation rules are useless; one should only understand that their impact is necessarily limited. Information rules still dominate US consumer policy even if some scholars try to take into account behav‐
16
ioural insights.

Much consumer protection legislation goes further than just securing that consumers are given sufficient and correct information. Mandatory provisions are included in contract law instruments, measures
against unfair contract terms are taken and liabilities for damages related to consumption of defective goods and services are established. Such regulations may to some extent change the power struc‐
tures on the marketplace and offer a genuinely improved position for consumers. However, the broader societal impact of such rules is related to the level of protection adopted. If the rules basically reflect
a common standard in the area, they are primarily to the disadvantage only to such ‘substandard’ businesses that strive to compete by offering a cheap price for poor performance. Consumer protection
17 This is not to say that such rules should necessarily be criticised. The removal of substan‐
legislation of this kind may for good reasons be promoted by ‘good standard’ businesses out of self-interest.
18
dard businesses from the market often is in the consumer interest as well. Generally strong consumer protection also means protection of businesses against unfair competition.

19 Two issues are at stake. Should consumer protec‐

Looked at from the perspective of consumers the societal impact of consumer protection is related to the ‘consumer image’ guiding consumer policy.
20 And in so far as the ‘typical’ consumers
tion address the problems only of typical average consumers or should one acknowledge the existence and needs of especially vulnerable consumers as well?
are the target, what level of knowledge and behaviour should one presume such a creature to have? In the EU, focus has been on the average consumer and the behavioural standard this consumer has
been assumed to adhere to has been set rather high. Both case law and later regulation has assumed that an average European consumer is ‘reasonably well-informed and reasonably observant and cir‐
21 although when applied by CJEU the outcomes have tended to respect legitimate consumer concerns.22 Particular rules on vulnerable consumers, however, have become part of the EU
cumspect’,
23 The risk connected with such an approach, even though it is important to bear in mind the needs of the weak and vulnerable, is a marginalisation of the consumer protection
legislative policy as well.
needs of mainstream consumers and hence a view that consumer law is a marginal topic. Therefore, particular rules for protection of vulnerable consumers do not remove the need for discussing whether
one should adopt also as a more general starting point the fact that most consumers are not as informed, observant and circumspect as one might believe. It is crucial to recognise structural weaknesses
of all consumers, regardless of their particular vulnerability. Behavioural economics have brought new insights into the discussion concerning this issue, as will be noted below.

The first wave of consumer law was still dominated by rules protecting the consumers of consumer goods. Consumer sales law was much more in the focus than the regulation of consumer services. The
24
growth of the service society has brought the position of the consumer of services more firmly on the agenda. This is not, however, reflected in any considerable changes in consumer law research.
The growing importance of services does not imply paradigmatic changes in the basic consumer protection policies, even though law sometimes may appear as somewhat more lenient on providers of
25
services than on providers of goods.

However, the era of digitalisation and globalisation may call for greater changes. The online consumer is confronted with new challenges and the partially global virtual environment requires new regulatory
instruments. Not only does the online world connect consumers and businesses across the borders to a much greater extent than before, calling for new solutions in areas like choice of law, harmonisation
and dispute resolution, it also greatly enhances the weight of issues related to various forms of distance selling. The use of personalised information puts pressure on traditional ways of regulating market‐
ing. On the other hand online information may in some contexts change the balance between consumers and businesses to the advantage of the former, and enhance national and international competi‐
tion. The deepest paradigmatic changes in the consumer law paradigm may follow from the emergence of new types of party relations challenging the foundation of consumer law as regulating the rela‐
tionship between consumers and businesses. Businesses may just run platforms, connecting individuals selling goods or services to other individuals.

26
The new challenges of consumer law in the digitalised world has certainly sparked much academic debate already, and it will certainly be one of the dominating themes in the years to come. However,
even though the new issues require new rules and adaptation of the existing ones, they do not necessarily call for fundamental changes in the core values of consumer law. Of course, others see technolo‐
gy as posing more fundamental challenges of regulating in cyberworld. Not only is it more jurisdictionally challenging to enforce laws in cyberspace, but it might be argued that cyberspace can give rise to
27 The question will be to what extent technology drives the agenda and what importance is
different values freed from national traditions. It may call for new forms of regulation that rely on technology.
given to traditional forms of consumer protection in this new environment.

2. Consumer Law Research

As the emerging discipline of consumer law was related to growing problems of a similar nature across the developed world, academic discussion in this area had and has a distinct comparative flavour of
its own. The perspective is somewhat different than what is typical within, for example, more established and traditional areas of private law. Of course the national traditions concerning legal research cer‐
tainly affect consumer law discourse as well, but within these boundaries there are certain features that connect consumer law research across the borders.

Naturally, for an emerging area of law, the consumer law discourse to a great extent is policy-oriented, looking at the opportunities for new legal and administrative measures and assessing the effects of
28 This includes papers focusing on the
measures already in use. Generalising from this many have also discussed issues relating to the goals and purposes of consumer protection and consumer law.
29 30 environmental protection31 and promotion of competition.32 Such approaches are easy to combine with an
relationship between consumer protection and human rights, developmental goals,
international perspective and a cross-border academic discourse.

In particular in the construction phase of consumer law there was an intense movement of regulatory ideas across the borders between legal orders. The examples of consumer law instruments and leg‐
33 This was the case even concerning very
islative solutions that were borrowed around the world are many. It is well known how the discussions and rules on products liability were travelling extensively.
34
concrete products liability issues; tobacco litigation cases in various countries drew much inspiration from other cases and discussions across borders. Other examples concerning moving solutions
are manifold. The use of cooling-off periods as a legislative instrument, the fight against unfair business practices and unfair terms in consumer contracts and the regulation of consumer credit issues were
widely discussed, as the papers in the collection show.
For consumer law research this has meant a relatively strong emphasis on a comparative perspective. Purely national legal analysis seems to be less prominent than in legal research in general. Compar‐
ative studies can be found related to all levels of abstraction. In some the basic approaches or philosophies of consumer protection in various countries or regions are compared, such as the comparison
35 or the comparison of the basic differences between a ‘consumerist’ and a ‘pro‐
between the ‘information and litigation’ strategy of the US and the ‘regulation and administration’ European approach,
36 Others compare the approach to particular problems or the use of particular instruments to protect the consumers. Comparative consumer law has been produced to deepen our
ducerist’ approach.
37 to consumer safety.38
knowledge on issues spanning from cooling-off periods

Within the European Union consumer protection has been on the Union legislative agenda already since the 1980s, and many important measures have been regulated at the European level. In European
discourse there has therefore existed a particular need for comparative knowledge on the situation within Europe, as a basis for possible harmonisation measures. Such comparative studies have, of
course, been conducted by the European Commission as a part of its law drafting work, but there are many academic contributions to this body of knowledge as well. There is also an abundance of policy-
oriented research, comparing European proposals or solutions to national solutions already available in Europe. There is also much academic discussion on the directions of European Union consumer
39 or related to particular issues, like the regulation of unfair contract terms.40 Lately the broader issue of European harmonisation of consumer contract law has been on the agenda,
policy as such,
41
related also to the discussions on harmonising private law more comprehensively.

As was indicated earlier, consumer law research to an overwhelming extent discusses issues that are topical in developed consumer societies. The comparative efforts therefore in most cases focus on
42 Comparative consumer law has a clear Western bias. However, this may change with consumer law
the law of such countries. The laws of developing countries are analysed to a much lesser extent.
43 India,44 China45 and the ASEAN region.46
developing in South America,

The policy-oriented research on consumer law is not limited to any particular subdivision of law. Even though many consumer researchers have their roots in private law, for consumer law research it is
natural to include the option of various kinds of public law instruments in the toolbox of consumer law as well. As consumer law spans across many traditional fields of law, it is natural for consumer law re‐
search to cross the disciplinary borders in the same way.

This does not mean that consumer law research would have lacked interest in issues related to the systematisation of the legal order. In particular in countries in which the systematical approach to law is
considered very important, the relationship between consumer law and the general private law system has triggered much discussion. Is consumer law to be seen as just a specialised
47 besides the ‘pure’ civil law, or should it rather be treated as a modern piece of a core area of civil law, affecting the ways in which one constructs the principles of civil law? Ap‐
Sonderprivatrecht,
48
proached from the latter standpoint, consumer law rules have been used to construct new socially geared principles of private law.

Consumer law research has been multidisciplinary not only in the intra-legal sense, crossing the boundaries between private law and public law. Being policy-oriented it has also been multidisciplinary in
the more demanding sense of crossing boundaries between legal (black-letter) research and other social sciences. A considerable amount of consumer law research falls within the genre that is usually
called ‘law and …’ approaches. In particular the production and use of empirical data is in this area facilitated by the nature of many consumer transactions as mass transactions and by the problems often
49 Typical ‘consumers and the law’ approaches use this knowl‐
being mass problems. It is, in other words, possible to produce useful empirical data, which can be used for the legal policy discussions.
50
edge and discuss the legal issues in connection with what is empirically known about consumer behaviour and consumer disputes.

Therefore it is not surprising that consumer-related issues have been analysed through the combined lenses of law and some other social theory. It is self-evident that law and economics is interested in
51 52
how to regulate the consumer market and consumer protection. For natural reasons behavioural economics has attracted much interest among consumer lawyers, as it acknowledges and incor‐
porates into economic analysis the fact that consumer rationality is limited (‘bounded’) – something that other social sciences and consumer law research certainly has been arguing ever since the begin‐
ning of consumer law.

The recourse to behavioural economics does not necessarily imply that all the scholars using this approach would reach similar conclusions with regard to the directions of consumer policy. In the Eu‐
ropean discussion the rise of behavioural economics has been understood as a powerful argument against the tendency to prioritise information as a tool for consumer protection in EU consumer policy. In
53 On the other hand it can also be used to ‘nudge’ consumers through default rules to
this context the behavioural insights in other words are used to defend more substantive protection measures.
54
make the choices regulators prefer through their own free will. In this way in the US, but also to some extent within Europe, it might be seen as a reason to retreat from regulation.

In the family of legal disciplines consumer law is a discipline with a strong international and multidisciplinary perspective. Accordingly, the amount of pure national black-letter legal writing in this area is
probably relatively smaller than within many other legal fields. In addition to the reason that the need for policy-oriented research is more obvious in an emerging and developing area of law, one may sus‐
pect that the often economically relatively small values attached to individual consumer law disputes may make it less attractive to immerse oneself too deeply in detailed issues of interpretation relevant
for such disputes. This is of course a very generalised assumption. There are issues of interpretation, for example related to products liability law, that can have a considerable economic impact. Indeed,
55
products liability is an issue on which one easily can find much interesting black-letter discussion in the legal literature.

3. Concrete Consumer Law: Areas and Instruments

Multidisciplinary consumer law is interested not only in law in the books, but also and strongly so, about law in action. It is not regarded as sufficient that the rules of consumer law improve the formal legal
position of the consumer. The methods and instruments for implementing and enforcing them should also be efficient so that the consumers in general, and not only the few legally aware activists, can en‐
joy the consumer protection offered. These instruments can be collected from various quarters of the legal order, including both private law, public law and criminal law measures. Naturally, the available
56
combinations of instruments and the interplay between private and public enforcement vary from country to country.

One important pair of concepts in consumer law discourse related to the aim of effective enforcement is the distinction between individual and collective consumer law. Many consumer law rules have
evolved in the private law setting, thereby requiring legal action by the consumer who wants to have her rights enforced. Individual protection is offered to the active consumer by the court in an individual
case. As this, for obvious reasons, is not very efficient, due to the mass of often low-value consumer issues, in most countries collective measures to address preventively consumer problems to the bene‐
fit of all or larger groups of consumers have been introduced. These measures may include collective procedures by organisations or authorities and the creation of particular consumer authorities like the
Nordic consumer ombudsmen. Collective redress procedures are also increasingly used, as the institute of class action, well-known in the US, has in some forms emerged in many other jurisdictions as
57 The administrative and procedural solutions required are often closely connected with the national administrative and procedural context in which they are used. Even in the EU many consumer
well.
58 Therefore the
law directives only require the member states to provide ‘adequate and effective means’ to implement the directive, leaving the concrete solutions concerning the system to the states.
research concerning the administrative structures almost by necessity gets a national flavour of the kind that leaves it outside these volumes. This is not to say that there is no general discussion of new
59 for example, as well as consideration on the usefulness and best design of injunction procedures in the con‐
techniques that have emerged. There is a mass of comparative literature on class actions
60
sumer area.

The same need for a national flavour also relates to the various solutions concerning access to justice. Being multidisciplinary and interested in the real effects of its rules consumer law research has pro‐
61
duced many publications on a multitude of issues related to access to justice and the effective enforcement of consumer rights. Again, much of this discussion is related to national procedural law or to
more general themes regarding access to justice, and it is therefore not included in this volume. In most countries the development of consumer law has led to the introduction and growth of small claims
procedures and alternative dispute resolution procedures. In contemporary discourse digitalisation has fueled much interest in new issues of online dispute resolution. The development of platforms to as‐
62 and models that can take advantage of working online.63
sist reconciling cross-border disputes has certainly given rise to interest in comparative dispute resolution models

Leaving the multifaceted and often nationally connected rules on enforcement and access to justice aside, the present volumes concentrate on the discussion concerning the material rules that should be
efficiently enforced.
Based on the chosen consumer policy approach and consumer image, the legal measures to protect the consumer vary from a strong emphasis on informational tools at one end of the scale to more sub‐
stantively protective measures at the other end. The stronger the belief in the capacity of the rational consumer to make informed decisions, the more importance is attached to tools that promote giving
sufficient and correct information to the consumer. In consumer law research the discussion on the effectiveness of informational tools has been intense. When some have advocated the development of
64 others have shown that information and disclosure regulation is dysfunctional, and mostly to the advantage of consumer groups that al‐
consumer protection by using information-based principles,
65 The claim that the belief in informational tools is in conflict with what is empirically known about consumer
ready without such regulation would have a fairly strong position on the consumer market.
66
behaviour has gained even stronger force through the increasing popularity of behavioural economics.

Particularly in EU law, and to a lesser extent elsewhere, the rational decision-making of the consumer has been enhanced not only by pure informational tools, but with cooling-off periods and a right to
67
withdrawal as well. Self-evidently the belief in the usefulness of this kind of remedy varies.

A variety of rules directed at unfair commercial practices address mostly pre-contractual issues aiming to safeguard the rational decision-making of the consumer. However, the extent and focus of rules in
68 Despite the huge variations,
this area vary considerably. Sometimes in the discourse societal goals, like taste and decency, are even prioritised higher than the primary goal of protecting the consumer.
69
the EU has succeeded to harmonise this area of consumer law and a European discourse on unfair commercial practices is emerging.

As to consumer contracts academic discussion has focused much on the question to what extent consumer contract law requires different rules and principles than general contract law. As mentioned
above, in particular in system-focused legal orders, the even more general issue of how to integrate consumer law into the legal system has come to the fore, often with examples deriving from contract
law. Perhaps the most important issue of principle is the question, how to manage the problem of unfair contract terms. Not surprisingly, the academic discourse on this issue covers a broad range of per‐
70 71
spectives, ranging from the discussion of imperfect information on contract terms and economic analysis of bounded rationality related to standard form contracting to substantive dogmatic discus‐
sions of the principles of unconscionability and good faith. In this area, the EU has been internationally quite influential. The Unfair Contract Terms Directive, harmonising this area as to the minimum
72 There is also an abundance of writings concerning unfair terms in consumer contracts in Europe.73 Even legal theory has
amount of fairness required, has been used as a model around the world.
74
drawn inspiration from the experiences related to the Directive.

It is self-evident that also particular contract types, such as consumer sales and various kinds of consumer services, have been analysed in the consumer law discourse. With the chosen relatively general
and multidisciplinary perspective of the present volumes, papers containing such concrete analysis have been omitted. Only an American more principle based analysis of consumer warranties is
75 76
included. The literature on, for example, the EU Consumer Sales Directive can only be mentioned in passing. It is worth noting, however, that the discussion on consumer sales lately has focused
much on digital sales and their particular problems. More generally, digitalisation brings many new kinds of problems on the consumer protection agenda. As these new challenges may even imply a dis‐
77
ruption of parts of the established consumer law paradigm, this will certainly be a very important area of consumer law in the years to come.

The particular problems related to consumer credit and consumer indebtedness have attracted the attention of both legislative actors and academic discourse since the emergence of consumer law as a
78 This is an area in which consumer issues are closely intertwined with deeper social problems of social exclusion,79 and the consumer credit discussion therefore easily gets a some‐
legal discipline.
80 The issue of consumer
what different societal flavour than consumer law discourse in general. The analysis of consumer credit law may be directly linked to the forms of justice of the welfare state.
81 The regula‐
credit has inspired academics to create societally geared alternative legal dogmatics, focusing on, for example, relieving indebtedness caused by unemployment, illness or similar reasons.
82
tion of credit contracts as social long-term contracts has been used as model for a social contract law. A socially geared critique of the belief in informational consumer protection measures, as favour‐
83
ing the already well-to-do, has a long and well-founded history in this area, and the need for financial literacy education is therefore underlined, but carries with it its own risk of placing too much re‐
84
sponsibility on individuals for things that go wrong when the fault may be more structural.

Related to consumer credit are rules on consumer bankruptcy. Also here the social goals of the rules attract much interest. The concrete measures in this area naturally are connected with the general
framework of bankruptcy law in each country. Still, comparative discussion on what social goals the consumer bankruptcy or individual bankruptcy schemes fulfil serves as an important reminder of the so‐
85
cietal roots of the indebtedness problem.

One of the most discussed subjects in the area of consumer protection is products liability, certainly due to the almost catastrophic nature of the most well-known products liability cases as well as the con‐
siderable economic impact of products liability in general. US products liability law has served as both an inspiring and discouraging example (both because of the liability crisis it was blamed for and due
to its retreat from strict liability principles for design defects) in the international discourse. The European Products Liability Directive has been understood both as a measure to improve the position of the
86 This is therefore fertile ground for discussions concerning the moral and economic foundations87 of
European consumer in this respect and as a way to prevent the US excesses to reach Europe.
88
products liability law as well as for comparative discussions on the US and EU models and their worldwide impact.

Finally, the changing relationship between public and private brings new problems on the consumer law agenda. Marketisation and privatisation of functions that earlier were taken care of within a public
law framework have exposed individuals using those functions to new kinds of issues, that now appear as market-based consumer protection problems. Societally very important is the changing status of
89
many so-called services of general interests. Consumer law research rightly has attempted to explore and develop the role of consumer law in this context. There has also been a debate about what
services should be universal in a modern society. Originally services of general interest covered those needed for basic service, the utilities of electricity, gas and water. Nowadays financial exclusion is an
important topic with access to reasonably priced credit as well as to basic banking services seen as important. Equally in a technologically dominated age telecommunications and access to good Internet
are increasingly being essential aspects of a consumer’s life in developed economies.

4. Choice of Papers
Internationally, there is an abundance of literature on consumer law and legal consumer policy. It would have posed no problem to fill several volumes more with very interesting and thought-provoking
consumer law papers. The editors at one stage of the collection work had a list of papers filling several thousand more pages than those now published. The downsizing of the list to the maximum limit giv‐
en by the publisher, 1800 pages for two volumes, led to a removal of many such papers that the editors would have been eager to include in the collection.

Several criteria have been important in the selection process. Of course quality is the first and foremost reason for including a paper in the volumes. Pathbreaking and much cited papers – though these
qualities are more difficult to assess for the more recent ones – as well as otherwise original contributions have been prioritised. As for citations the indications found on Google Scholar have been used,
but only indicatively, as the editors have been well aware of the deficiencies of the results.

However, in addition to quality also the subject of the paper has been taken into account. The goal is to present a sufficiently broad exposé of consumer law research, covering the most important sub-ar‐
eas of consumer law. As to subjects on which there is much academic discussion available, this has meant the deletion of papers of even very high quality and impact.

Some of the popular subjects have been discussed even long before the advent of consumer law as a specific legal discipline. The discussion concerning unfair contract terms and standard form contracts
90
have century-long roots. Papers from pre-consumer law discussion, however, are not included, regardless of their high quality and impact.

Consumer law research was above characterised as international and multidisciplinary. It is obvious that these features are emphasised even more in a collection of essays like this. The collection
presents papers that are interesting for an international audience, and nationally focused black-letter law papers seldom are. In addition, the fact that only papers written in English are included in the vol‐
umes already excludes many of the papers discussing national consumer law, regardless of their quality. It also constrained our selection options and inevitably excluded many high quality papers.

The line between national and international contributions is not always easy to draw. Common law, even in its national UK version, often has a wide international relevance as many countries look to it as a
model. European Union law again could be equated to national law, if looked at from a pan-EU perspective, but certainly appears as international seen from the perspective of the individual member state.
In the volumes both common law papers and papers on EU law are included. A critical reader may even claim that EU consumer law is overrepresented in the collection, due to the particular research in‐
terests of the editors.

In order to explain the choices made one should still mention the guidelines given by the publisher to the editors. Much interesting consumer law discourse has been published in edited books and confer‐
ence reports. However, according to the directives given to the editors, book excerpts should be avoided where possible. Therefore only a few papers published in edited books are included here. And self-
evidently the vast and highly influential discussion in monographs on consumer law does not appear between the binders of these volumes. Therefore, in this introductory chapter the editors have made
references in particular to monographs and edited books.

Even with the limitations mentioned here the editors are convinced that the papers in these volumes on consumer law will offer much enjoyable reading. For some they will rekindle old memories, for oth‐
ers they will provide fresh insights. We hope they provide an overview of the rich discussions in what has probably been one of the fastest developing areas of law in recent decades – at least within
Europe.

Notes

1. See, for example, J.D. Forbes (1987), The Consumer Interest: Dimensions and Policy Implications, Croom
Helm, 3 who starts the history from the Code of Hammurabi.

2. John F. Kennedy, Special Message to the Congress on Protecting the Consumer Interest (1962: Volume I,
Chapter 2).

3. See United Nations Guidelines for Consumer Protection, last revised in 2015 (2003: Volume I, Chapter 1). The
first version was adopted in 1985. See also, David Harland (1987), ‘The United Nations Guidelines for Consumer
Protection’, Journal of Consumer Policy, 10, 245–66 and Mateja Durovic and Hans W. Micklitz (2017), International‐
ization of Consumer Law: A Game Changer, Springer.

4. Ralph Nader in the US appearing as a model for many.

5. See from that time for example, Thierry Bourgoignie and David Trubek (1987), Consumer Law, Common Mar‐
kets and Federalism in Europe and the United States, Walter de Gruyter; Ludwig Krämer (1986), EEC Consumer
Law, Story Scientia; Geraint Howells and Thomas Wilhelmsson (1997), EC Consumer Law, Ashgate and Norbert
Reich (1996), Europäisches Verbraucherrecht, Nomos.

6. For example, Reich (1992: Volume I, Chapter 5).

7. Aviva Freilich and Eileen Webb (2013), ‘Small Business – Forgotten and in Need of Protection from Unfair‐
ness?’, University of Western Australia Law Review, 37, 134–55: the Australian Consumer Law has been subse‐
quently extended so the unfair contract terms provisions cover small business contracts.

8. See, for example, Hans-W. Micklitz (ed.) (1996), Rechtseinheit oder Rechtsvielfalt in Europa? Rolle und Funk‐
tion des Verbraucherrechts in der EG und den MOE-Staaten, Nomos; Hans-W. Micklitz (ed.) (2012), Modernising
Consumer Law: The Experience of the Western Balkan, Nomos.

9. See, for example, many of the papers in Iain Ramsay (ed.) (1997), Consumer Law in the Global Economy, Na‐
tional and International Dimensions, Ashgate and Sothi Rachagan (ed.) (1999), Consumer Protection in the WTO
Era, AIDC-IACL. On UN Guidelines see note 3.

10. Rachagan (2018: 35, Volume I, Chapter 9).

11. John Kenneth Galbraith and Alan Cook (1958), The Affluent Society, Houghton Mifflin.

12. For a critique, see Wilhelmsson (2004: Volume I, Chapter 7).

13. See, for example, Klaus Tonner (1976), ‘Verbraucherschutz und Klassentheorie’, Demokratie und Recht, 241–
8, 242.

14. See, for example, Christian Twigg-Flesner, Rainer Schulze and Jonathan Watson (2018), ‘Protecting Rational
Choice: Information and the Right Of Withdrawal’, in Geraint Howells, Iain Ramsay and Thomas Wilhelmsson (eds),
Handbook of Research on International Consumer Law, 2nd edn, Edward Elgar Publishing, 111–38; Geraint How‐
ells, Christian Twigg-Flesner and Thomas Wilhelmsson (2018), Rethinking EU Consumer Law, Routledge, 31–6.
See also, more generally Stefan Vogenauer, Wolfgang Kerber and Stephen Weatherill (2001), Party Autonomy and
the Role of Information in the Internal Market, Walter de Gruyter.

15. Konstantin Simitis (1976), Verbraucherschutz, Schlagwort oder Rechtsprizip?, Nomos, 107 et seq.

16. Omri Ben-Shahar and Carl E. Schneider (2014), More Than You Wanted to Know: The Failure of Mandated
Disclosure, Princeton University Press. See also, Ben-Shahar and Schneider (2011: Volume II, Chapter 4).

17. For example, in the Nordic countries the mandatory rules on insurance contracts were advocated for by the
leading insurance companies for this reason.

18. See already George A. Akerlof (1978), ‘The Market for “Lemons”: Quality Uncertainty and the Market Mecha‐
nism’, Uncertainty in Economics, 235–51.

19. On the EU, see also, Dorota Leczykiewicz and Stephen Weatherill (eds) (2015), The Images of the Consumer
in EU Law: Legislation, Free Movement and Competition Law, Hart Publishing.

20. On vulnerable consumers, see, for example, Cartwright (2015: Volume I, Chapter 8). See also, for example,
Lisa Waddington (2013), ‘Vulnerable and Confused: The Protection Of “Vulnerable” Consumers Under EU Law’, Eu‐
ropean Law Review, 6, 757–82.

21. Definition first used by the European Court of Justice in Case C-216/96, Gut Springenheide GmbH v
Oberkreisdirektor des Kreises Steinfurt [1998] ECR I-4657.

22. See Geraint Howells, Hans-W. Micklitz and Thomas Wilhelmsson (2006), European Fair Trading Law, Ash‐
gate, 11 and Geraint Howells and Gert Straetmans, ‘The Interpretive Function of the CJEU and the Interrelationship
of EU and National Levels of Consumer Protection’, in Perspectives on Federalism available at http://www.on-feder‐
alism.eu/index.php/essays/265-the-interpretive-function-of-the-cjeu-and-the-interrelationship-of-eu-and-national-lev‐
els-of-consumer-protection (http://www.on-federalism.eu/index.php/essays/265-the-interpretive-function-of-the-cjeu-and-the-interrelationship-
of-eu-and-national-levels-of-consumer-protection).

23. For example, the rules on vulnerable consumers in the Unfair Commercial Practices Directive, Art. 5(3).

24. Hans-W. Micklitz, ‘Regulatory Strategies on Services Contracts in EC Law’, in Fabrizio Cafaggi and Horatia
Muir Watt (eds) (2009), The Regulatory Function of EU Private Law, Edward Elgar Publishing, 16.

25. A negligence standard rather than strict liability seems to be more common in relation to services.
26. Scott (2004: Volume II, Chapter 14), Helberger et al. (2013: Volume II, Chapter 15) and Sundararajan (2016:
Volume II, Chapter 16). See also, for example, Jane K. Winn (ed.) (2006), Consumer Protection in the Age of the ‘In‐
formation Economy’, Ashgate; Cristina Coteanu (2005), Cyber Consumer Law and Unfair Trading Practices, Ash‐
gate; Christine Riefa (2015), Consumer Protection and Online Auction Platforms, Ashgate.

27. Lawrence Lessig (2006), Code: Version 2.0, Basic Books.

28. See, for example, Trebilcock (1975: Volume I, Chapter 3); Ramsay (1985: Volume I, Chapter 4) and Reich
(1992: Volume I, Chapter 5).

29. See Deutch (1994: Volume I, Chapter 6).

30. See Rachagan (2018: Volume I, Chapter 9).

31. See Tonner (2000: Volume I, Chapter 10).

32. See MacCulloch (2018: Volume I, Chapter 11). See also, Katalin Judit Cseres (2005), Competition Law and
Consumer Protection, Kluwer Law International and Neil W. Averitt and Robert H. Lande (1997), ‘Consumer Sover‐
eignty: A Unified Theory of Antitrust and Consumer Protection Law’, Antitrust Law Journal, 65, 713–56.

33. See, for example, Reimann (2003: Volume II, Chapter 23). See also, Jocelyn Kellam and Luke Nottage (2008),
‘Europeanisation of Product Liability in the Asia-Pacific Region: A Preliminary Empirical Benchmark’, Journal of Con‐
sumer Policy, 31, 217–41 and Magdalena Tulibacka (2009), Product Liability Law in Transition: A Central European
Perspective, Ashgate.

34. See, for example, Geraint Howells (2011), The Tobacco Challenge. Legal Policy and Consumer Protection,
Ashgate.

35. Howells and Wilhelmsson (1997: Volume I, Chapter 18).

36. Whitman (2007: Volume I, Chapter 19).

37. Rekaiti and Van den Bergh (2000: Volume II, Chapter 5).

38. Geraint Howells (1998), Consumer Product Safety, Ashgate.

39. See, for example, Stuyck (2000: Volume I, Chapter 20) and Weatherill (2012: Volume I, Chapter 21). See also,
general discussions on EU consumer law and policy in Stephen Weatherill (2013), EU Consumer Law and Policy,
2nd edn, Edward Elgar Publishing; Norbert Reich, Hans-W. Micklitz, Peter Rott and Klaus Tonner (2014), European
Consumer Law, 2nd edn, Intersentia; Geraint Howells, Christian Twigg-Flesner and Thomas Wilhelmsson (2018),
Rethinking EU Consumer Law, Routledge and directly focused on general issues of EU consumer policy Hans-W.
Micklitz and Stephen Weatherill (1993), ‘Consumer Policy in the European Community: Before and after Maastricht’,
Journal of Consumer Policy, 16, 285–321; Hans-W. Micklitz (2012), ‘The Expulsion of the Concept of Protection
from the Consumer Law and the Return of Social Elements in the Civil Law – A Bittersweet Polemic’, Journal of
Consumer Policy, 35, 283–96.
40. A good example is Brandner and Ulmer (1991: Volume II, Chapter 8), which had a clear impact on the drafting
of the Unfair Contract Terms Directive.

41. See, for example, Geraint Howells and Reiner Schulze (eds) (2009), Modernising and Harmonising Consumer
Contract Law, Sellier and Hans-W. Micklitz and Norbert Reich (2009), ‘Crónica de una muerte anunciada: the Com‐
mission Proposal for a Directive on Consumer Rights’, Common Market Law Review, 46, 471. See also, Christian
Twigg-Flesner (2012), A Cross-border-only Regulation for Consumer Transactions in the EU – a New Approach to
EU Consumer Law, Springer.

42. Rachagan (2018: Volume I, Chapter 9).

43. Robert G. Vaughn (1994), ‘Consumer Protection Laws in South America’, Hastings International and Compara‐
tive Law Review, 17, 275–322; Antonio Benjamin (1997), ‘Consumer Protection in Less-Developed Countries: The
Latin American Experience’, in Iain Ramsay (ed.), Consumer Law in the Global Economy: National and International
Dimensions, Dartmouth, 49–71; Claudia Lima Marques (2017), ‘25 Years to Celebrate: Horizons Reached by the
1990 Brazilian Consumer Protection Code and Horizons to Come, Especially on the International Protection of Con‐
sumers’, in Claudia Lima Marques and Dan Wei (eds), Consumer Law and Socioeconomic Development: National
and International Dimensions, Springer, 103.

44. D.N. Saraf (1997), ‘Key Issues in Consumer Protection in India’, in I. Ramsay (ed.), Consumer Law in the
Global Economy: National and International Dimensions, Dartmouth, 125–40.

45. Kristie Thomas (2017), ‘Revolution or Evolution? The Development of Consumer Protection Law in Contempo‐
rary China’, Journal of Business Law, 181–97.

46. Luke Nottage and Sakda Thanitcul (2016), ASEAN Product Liability and Consumer Product Safety Law,
Winyuchon Publication House.

47. For an early discussion in Germany, see, for example, Reinhard Damm (1978), ‘Verbraucherrechtliche Son‐
dergesetzgebung und Privatrechtssystem’, Juristenzeitung, 33, 173–80 and Peter Gilles (1980), ‘Zur neueren Ver‐
braucherschutzgesetzgebung in ihrem Verhältnis zum klassischen Privatrecht’, Juristische Arbeitsblätter, 1–8. For
the present situation, see Reinhard Zimmermann (2005), ‘Consumer Contract Law and General Contract Law: The
German Experience’, Current Legal Problems, 58, 415–89.

48. See, for example, Micklitz (1999: Volume I, Chapter 12) and Lurger (2011: Volume I, Chapter 13); as well as
Thomas Wilhelmsson (1995), Social Contract Law and European Integration, Dartmouth and Martijn W. Hesselink
(2007), ‘European Contract law: A Matter of Consumer Protection, Citizenship, or Justice’, European Review of Pri‐
vate Law, 15, 323–48.

49. An impressive example is Ayres (1991: Volume I, Chapter 14).

50. A much-used paradigmatic work was Ross Cranston (1984), Consumers and the Law, 2nd edn, Frome and
London. See now C. Scott and J. Black (2000), Cranston’s Consumers and the Law, Cambridge University Press.
51. For example, Rekaiti and Van den Bergh (2000: Volume II, Chapter 5). See also, Franziska Weber (2014), The
Law and Economics of Enforcing European Consumer Law, Ashgate.

52. See, for example, Bar-Gill (2008: Volume I, Chapter 15); Bar-Gill, Ben-Shahar and Marotta-Wurgler (2017: Vol‐
ume I, Chapter 16); Sibony (2015: Volume I, Chapter 17); as well as Howells (2005: Volume II, Chapter 3) and Ben-
Shahar and Schneider (2011: Volume II, Chapter 4). See also, the special issue (2011), ‘Behavioural Economics,
Consumer Policy, and Consumer Law’, Journal of Consumer Policy, 34, 3 and Anne-Lise Sibony, and Geneviève
Helleringer (2015), ‘EU Consumer Protection and Behavioural Sciences’, in Alberto Alemanno and Anne-Lise Si‐
bony (eds), Nudge and the Law: A European Perspective, Bloomsbury Publishing.

53. See, for example, on unfair terms Michael G. Faure and Hanneke A. Luth (2011), ‘Behavioural Economics in
Unfair Contract Terms: Cautions and Considerations’, Journal of Consumer Policy, 34, 337–58.

54. Cass R. Sunstein and Richard H. Thaler (2003), ‘Libertarian Paternalism is not an Oxymoron’, University of
Chicago Law Review, 70, 1159–202.

55. See, for example, Geraint Howells (2007), The Law of Product Liability, 2nd edn, Butterworths.

56. See Fabrizio Cafaggi and Hans-W. Micklitz (eds) (2009), New Frontiers of Consumer Protection: The Interplay
Between Private and Public Enforcement, Intersentia. See also, Franziska Weber (2014), The Law and Economics
of Enforcing European Consumer Law, Ashgate.

57. See, for example, Christopher Hodges (2008), The Reform of Class and Representative Actions in European
Legal Systems: A New Framework for Collective Redress in Europe, Bloomsbury Publishing.

58. See, for example, the Unfair Contract Terms Directive, Article 7(1) and the Unfair Commercial Practices Direc‐
tive, Article 11(1).

59. For example, Rachael Mulheron (2004), The Class Action in Common Law Legal Systems: A Comparative
Perspective, Bloomsbury Publishing.

60. Fabrizio Cafaggi and Hans-W. Micklitz (2008), ‘Collective Enforcement of Consumer Law: A Framework for
Comparative Assessment’, European Review of Private Law, 16, 391–425.

61. See, for example, Charles E.F. Rickett and Thomas G.W Telfer (2003), International Perspectives on Con‐
sumers’ Access to Justice, Cambridge University Press; Christopher Hodges and Astrid Stadler (eds) (2013), Re‐
solving Mass Disputes: ADR and Settlement of Mass Claims, Edward Elgar Publishing.

62. Christopher Hodges, Iris Benöhr and Naomi Creutzfeld (2012), Consumer ADR in Europe, Hart Publishing.

63. Pablo Cortés (2010), Online Dispute Resolution for Consumers in the European Union, Routledge.

64. Hadfield, Howse and Trebilcock (1998: Volume II, Chapter 2).

65. Whitford (1973: Volume II, Chapter 1) is a classic study.

66. Howells (2005: Volume II, Chapter 3) and Ben-Shahar and Schneider (2011: Volume II, Chapter 4)

67. Rekaiti and Van den Bergh (2000: Volume II, Chapter 5). For a critique, see Horst Eidenmüller (2011), ‘Why
Withdrawal Rights?’, European Review of Contract Law, 7, 1–24. The behavioural science arguments are assessed
in Joasia A. Luzak (2014), ‘To Withdraw or not to Withdraw? Evaluation of the Mandatory Right of Withdrawal in
Consumer Distance Selling Contracts Taking into Account its Behavioural Effects on Consumers’, Journal of Con‐
sumer Policy, 37, 91–111.

68. See, for example, concerning the EU, Geraint Howells, Hans-W. Micklitz and Thomas Wilhelmsson (2006), Eu‐
ropean Fair Trading Law, Ashgate, 59–63.

69. Stuyck, Terryn and Van Dyck (2006: Volume II, Chapter 6) as well as Hugh Collins (ed.) (2004), The Forthcom‐
ing EC Directive on Unfair Commercial Practices, Kluwer Law International; Malek Radeideh (2005), Fair Trading in
EC Law, Europa Law Publishing; Geraint Howells, Hans-W. Micklitz and Thomas Wilhelmsson (2006), European
Fair Trading Law, Ashgate; Stephen Weatherill and Ulf Bernitz (eds) (2007), The Regulation of Unfair Commercial
Practices Under EC Directive 2005/29: New Rules and New Techniques, Bloomsbury Publishing; Bert Keirsbilck
(2011), The New European Law of Unfair Commercial Practices and Competition Law, Hart Publishing; Willem van
Boom, Amandine Garde and Orkun Akseli (2014), The European Unfair Commercial Practices Directive, Ashgate;
Bram B. Duivenvoorde (2015), The Consumer Benchmarks in the Unfair Commercial Practices Directive, Springer
and Jules Stuyck (2015), ‘The Court of Justice and the Unfair Commercial Practices Directive’, Common Market Law
Review, 52, 721–52.

70. Schwartz and Wilde (1983: Volume II, Chapter 7).

71. See the interesting analysis of Russell Korobkin (2003), ‘Bounded Rationality, Standard Form Contracts, and
Unconscionability’, University of Chicago Law Review, 70, 1203–95, even though it is not dressed in consumer law
terminology.

72. As an example see the Australian Consumer Law 2011.

73. See Brandner and Ulmer (1991: Volume II, Chapter 8), with strong impact on the drafting of the Directive;
Beale (1995: Volume II, Chapter 9); Micklitz and Reich (2014: Volume II, Chapter 10); Chen-Wishart (2014: Volume
II, Chapter 11) and Willett (2012: Volume II, Chapter 12). For a more comprehensive analysis of the Directive, see
Chris Willett (2007), Fairness in Consumer Contracts, Ashgate and Paolisa Nebbia (2007), Unfair Contract Terms in
European Law, Hart Publishing.

74. Gunther Teubner (1998), ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Diver‐
gences’, Modern Law Review, 61, 11–32.

75. Priest (1981: Volume II, Chapter 13).

76. C. Massimo Bianca and Stefan Grundmann (2002), EU Sales Directive, Intersentia; Reiner Schulze (ed.)
(2012), Common European Sales Law (CESL) – Commentary, Beck, Hart Publishing, Nomos.
77. Scott (2004: Volume II, Chapter 14); Helberger, Loos, Guibault, Mak and Pessers (2013: Volume II, Chapter
15) and Sundararajan (2016: Volume II, Chapter 16). See also, Alberto De Franceschi (ed.) (2016), European Con‐
tract Law and the Digital Single Market, Intersentia.

78. See, for example, Johanna Niemi, Iain Ramsay and William C. Whitford (eds) (2009), Consumer Credit, Debt
and Bankruptcy: Comparative and International Perspectives, Bloomsbury Publishing.

79. Hans-W. Micklitz and Irina Domurath (eds) (2015), Consumer Debt and Social Exclusion in Europe, Ashgate.

80. Ramsay (1995: Volume II, Chapter 17).

81. Udo Reifner (1979), Alternatives Wirtschaftsrecht am Beispiel der Verbraucherverschuldung, Luchterhand,
291–341 and Wilhelmsson (1990: Volume II, Chapter 20).

82. Reifner (2007: Volume II, Chapter 18); Luca Nogler and Udo Reifner (eds) (2014), Life Time Contracts: Social
Long-term Contracts in Labour, Tenancy and Consumer Credit Law, Eleven International Publishing.

83. Whitford (1973: Volume II, Chapter 1).

84. Williams (2007: Volume II, Chapter 19).

85. See, for example, Iain Ramsay (1997), ‘Models of Consumer Bankruptcy: Implications for Research and Poli‐
cy’, Journal of Consumer Policy, 20, 269–87; Johanna Niemi-Kiesiläinen (1999), ‘Consumer Bankruptcy in Compari‐
son: Do We Cure a Market Failure or a Social Problem?’, Osgoode Hall Law Journal, 37, 473–503; Johanna Niemi-
Kiesiläinen, Iain Ramsay and William C. Whitford (eds) (2003), Consumer Bankruptcy in Global Perspective, Hart
Publishing.

86. See also, the critical stance on the impact of the Directive by Jane Stapleton (1999), ‘Products Liability in the
United Kingdom: The Myths of Reform’, Texas International Law Journal, 34, 45–70.

87. See, for example, Owen (1993: Volume II, Chapter 21) and Twerski and Henderson, Jr (2009: Volume II, Chap‐
ter 24).

88. See, for example, Howells and Mildred (1998: Volume II, Chapter 22) and Reimann (2003: Volume II, Chapter
23). See also, Duncan Fairgrieve (ed.) (2005), Product Liability in Comparative Perspective, Cambridge University
Press and Geraint Howells (1993), Comparative Product Liability, Dartmouth.

89. Rott (2005: Volume II, Chapter 25); Colin Scott (2000), ‘Services of General Interest in EC Law: Matching Val‐
ues to Regulatory Technique in the Public and Privatised Sectors’, European Law Journal, 6, 310–25; very compre‐
hensively Martina Melcher (2016), Dienstleistungen von allgemeinem wirtschaftlichem Interesse im europäischen
Privatrecht, Mohr Siebeck.

90. See, for example, Raymond Saleilles (1901), De la declaration de volonté, Paris; Ludwig Raiser (1935), Das
Recht der allgemeinen Geschäftsbedingungen, Hamburg; Friedrich Kessler (1943), ‘Contracts of Adhesion – Some
Thoughts About Freedom of Contract’, Columbia Law Review, 43, 629–42 and Todd D. Rakoff (1983), ‘Contracts of
Adhesion: An Essay in Reconstruction’, Harvard Law Review, 96, 1174–284.

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