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Towards a Protective Condictio? The Bank M Case in the Prism of Restitutory Remedies: A Reconstructive Proposal 走向保护性条件？法定救济棱镜下的 M 银行案：重建建议
European Review of Contract Law Pub Date : 2024-06-01 DOI: 10.1515/ercl-2024-2007
Francesca Corletto
{"title":"Towards a Protective Condictio? The Bank M Case in the Prism of Restitutory Remedies: A Reconstructive Proposal","authors":"Francesca Corletto","doi":"10.1515/ercl-2024-2007","DOIUrl":"https://doi.org/10.1515/ercl-2024-2007","url":null,"abstract":"Abstract The aim of the paper is to provide a reconstructive reading of the case Bank M in the light of the core principles of the system of protection established by Directive 93/13, as well as, more generally, the regulation of restitutionary remedies derivable from national laws and the general principles of EU law. The analysis takes particularly into account the Italian civil lawyer’s point of view, as before the advent of Bank M, the Italian Supreme Court had already ruled on the same subject, establishing an unprecedented version of the condictio: an asymmetrical condictio, which has been defined, with a significant expression, as ‘protective condictio indebiti’. Since both Courts allow the non professional party to pursue restitutory claims to which the professional party is not entitled as well, one might be led to believe that the same starting question was resolved in the same way in both cases, and therefore that, as a result of the case Bank M, a ‘protective condictio indebiti’ such as that established by the Italian Supreme Court can be said to have been established (also) in European contract law. However, for the reasons to be explained below, it is believed that the CJEU did not intend to introduce a unilateral or asymmetrical claim for recovery of undue payment, but merely permitted the consumer to demand what, under domestic law, he or she would have obtained by exercising the general action of unjust enrichment. It will be seen how the general content of restitutory protection is articulated in the system established by the UCTD, in the light of the most relevant ECJ’s case-law on this subject, with the ultimate aim of verifying whether the ‘protective condictio indebiti’ outlined by Italian case-law can enter fully into European contract law.156","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"25 4","pages":"155 - 187"},"PeriodicalIF":0.0,"publicationDate":"2024-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141404203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
EU Contract Case Law, January – March 2024 欧盟合同判例法，2024 年 1 月至 3 月
European Review of Contract Law Pub Date : 2024-06-01 DOI: 10.1515/ercl-2024-2008
Fabrizio Esposito, Lucila De Almeida, Elisa Valletta
{"title":"EU Contract Case Law, January – March 2024","authors":"Fabrizio Esposito, Lucila De Almeida, Elisa Valletta","doi":"10.1515/ercl-2024-2008","DOIUrl":"https://doi.org/10.1515/ercl-2024-2008","url":null,"abstract":"Abstract This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of January 2024 and the end of March 2024. Out of a total of 123 judgments decided in this period, 37 had a contract law dimension.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"3 3","pages":"188 - 206"},"PeriodicalIF":0.0,"publicationDate":"2024-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141412450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Unfairness of Personalised Price Terms in Consumer Credit Products 消费信贷产品中个性化价格条款的不公平之处
European Review of Contract Law Pub Date : 2024-04-01 DOI: 10.1515/ercl-2024-2003
Melvin Tjon Akon
{"title":"The Unfairness of Personalised Price Terms in Consumer Credit Products","authors":"Melvin Tjon Akon","doi":"10.1515/ercl-2024-2003","DOIUrl":"https://doi.org/10.1515/ercl-2024-2003","url":null,"abstract":"\u0000 This article examines whether, and if so to what extent, a lender can engage in the algorithmic personalised pricing of consumer credit products (PP) under the Unfair Contract Terms Directive (UCTD) and the Consumer Credit Directive (CCD). To this end, the author first analyses the economic literature to discuss the mechanics of PP and the economic impacts on different consumer groups. This overview is followed by an examination of the UCTD and the CCD, in the broader context of EU regulatory law, as these Directives apply to the practice and the contractual terms. Subsequently, the author applies the considerations of the European Court of Justice (CJEU) in the jurisprudence regarding price terms in credit and mortgage agreements to personalised price terms. Finally, the author concludes that the Directives indeed limit the extent to which a lender can engage in PP, but that the frameworks in the broader EU regulatory context would be better suited than the Directives to address the negative economic impacts of the practice.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"71 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140794870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Fabrizio Esposito, 2022, The Consumer Welfare Hypothesis in Law and Economics: Towards a Synthesis for the 21st Century, Edward Elgar Fabrizio Esposito，2022 年，《法律和经济学中的消费者福利假说》：Towards a Synthesis for the 21st Century, Edward Elgar
European Review of Contract Law Pub Date : 2024-04-01 DOI: 10.1515/ercl-2024-2006
Nuno Garoupa
{"title":"Fabrizio Esposito, 2022, The Consumer Welfare Hypothesis in Law and Economics: Towards a Synthesis for the 21st Century, Edward Elgar","authors":"Nuno Garoupa","doi":"10.1515/ercl-2024-2006","DOIUrl":"https://doi.org/10.1515/ercl-2024-2006","url":null,"abstract":"","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"38 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140783612","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
A Third Directive on Consumer Credit 关于消费信贷的第三项指令
European Review of Contract Law Pub Date : 2024-04-01 DOI: 10.1515/ercl-2024-2001
Esther Arroyo Amayuelas
{"title":"A Third Directive on Consumer Credit","authors":"Esther Arroyo Amayuelas","doi":"10.1515/ercl-2024-2001","DOIUrl":"https://doi.org/10.1515/ercl-2024-2001","url":null,"abstract":"\u0000 The recently adopted Consumer Credit Directive incorporates new forms of credit and uses classic consumer protection instruments as well as introducing measures that increase control over lenders with the aim of preventing over-indebtedness. In general, more burdens are imposed on lenders and certain commercial practices are banned or restricted in all Member States. Moreover, the Directive is characterised by the fact that it includes consumer data protection and specifies a consumers’ right not to be discriminated against, which may have some overlap with the General Data Protection Regulation and the on-going development of EU artificial intelligence legislation.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"318 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140776238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Transnational Private Regulation of Environmental Sustainability through Commercial Contracts. Reassessing Contractual Governance in Global Supply Chains 通过商业合同对环境可持续性进行跨国私人监管。重新评估全球供应链中的合同治理
European Review of Contract Law Pub Date : 2024-04-01 DOI: 10.1515/ercl-2024-2002
F. Cafaggi
{"title":"Transnational Private Regulation of Environmental Sustainability through Commercial Contracts. Reassessing Contractual Governance in Global Supply Chains","authors":"F. Cafaggi","doi":"10.1515/ercl-2024-2002","DOIUrl":"https://doi.org/10.1515/ercl-2024-2002","url":null,"abstract":"\u0000 Sustainability standards are integrated and applied in global supply chains through transnational commercial contracts that have come to play a regulatory function in addition to the conventional exchange task. The design of the architecture of contracting, the coordination among contracts, and the content of sustainability terms along the chain is the result of the cooperation of different actors, led by one or more transnational corporations. The paper describes the distribution of private regulatory power according to the structures of the chains- hierarchical, relational, market -and its impact on the compliance with sustainability standards. It considers the qualification system that regulates entry, exit, and permanence in the chain and the Suppliers codes and General principles of sustainability specified in the general terms and conditions. These represent complementary direct and indirect private regulatory instruments that can be deployed to ensure compliance. The choice of instruments depends on the distribution of regulatory power among the private actors and their exercise. Privity of contract makes it often difficult if not impossible direct regulation by the chain leader and obliges decentralization of regulatory power. The analysis shows that only the complementarity between the two sets of instruments enables control of compliance in complex chains whose actors operate across different jurisdictions with the use of sanctioning and remedial powers. The article analyzes how26 principles of effectiveness, proportionality and dissuasiveness may contribute to a fair and non discriminatory exercise of private regulatory power related to the implementation of sustainability standards through contracts.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"877 13","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140774720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Sustainability Clauses in ‘Public’ Contracts 公共 "合同中的可持续性条款
European Review of Contract Law Pub Date : 2024-04-01 DOI: 10.1515/ercl-2024-2004
Ezgi Uysal
{"title":"Sustainability Clauses in ‘Public’ Contracts","authors":"Ezgi Uysal","doi":"10.1515/ercl-2024-2004","DOIUrl":"https://doi.org/10.1515/ercl-2024-2004","url":null,"abstract":"\u0000 Under the Public Sector Directive, public buyers are allowed to include sustainability considerations in their purchasing decisions within the limits of the principles of procurement. This framework allows criteria linked to the subject matter to be contractualised. Though different criteria are widely employed in public procurement within the umbrella of sustainable public procurement, the literature mostly focuses on stages leading to the contract award instead of considering the public contract as a document incorporating contractual obligations. On the other side, green and social commitments in (business) contracts are considerations that are not necessarily linked to the subject matter. Though their value is acknowledged, their enforcement proves to be challenging due to the restraints of contract law. By using European contract law as a reference point, this paper compares sustainability clauses in business contracts to sustainability clauses in public contracts – to determine whether the EU regime applicable to public contracts offers solutions to these hurdles.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"88 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140788204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
EU Contract Case Law, July–December 2023 欧盟合同判例法，2023 年 7 月至 12 月
European Review of Contract Law Pub Date : 2024-04-01 DOI: 10.1515/ercl-2024-2005
Fabrizio Esposito, L. D. Almeida, Carolina Paulesu
{"title":"EU Contract Case Law, July–December 2023","authors":"Fabrizio Esposito, L. D. Almeida, Carolina Paulesu","doi":"10.1515/ercl-2024-2005","DOIUrl":"https://doi.org/10.1515/ercl-2024-2005","url":null,"abstract":"\u0000 This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of July 2023 and the end of December 2023. Out of a total of 220 judgments decided in this period, 57 had a contract law dimension.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"32 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140770048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
30 years of UCTD 1993 1993 年UTD 30 周年
European Review of Contract Law Pub Date : 2023-11-28 DOI: 10.1515/ercl-2023-2017
{"title":"30 years of UCTD 1993","authors":"","doi":"10.1515/ercl-2023-2017","DOIUrl":"https://doi.org/10.1515/ercl-2023-2017","url":null,"abstract":"","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139220891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Digitized Terms: The Regulation of Standard Contract Terms in the Digital Age 数字化条款：数字时代的标准合同条款监管
European Review of Contract Law Pub Date : 2023-11-28 DOI: 10.1515/ercl-2023-2019
Florian Möslein
{"title":"Digitized Terms: The Regulation of Standard Contract Terms in the Digital Age","authors":"Florian Möslein","doi":"10.1515/ercl-2023-2019","DOIUrl":"https://doi.org/10.1515/ercl-2023-2019","url":null,"abstract":"Abstract Digital transformation is also transforming standard contract terms. With the emergence of online platforms, supported by algorithmic data analysis and self-enforcing technologies, platform terms are becoming increasingly common. The article argues that this type of terms differs from traditional standard terms in a number of ways, and it considers whether the existing unfair contract terms regime is still appropriate. The regulatory tools once developed for standard terms in bilateral agreements – transparency requirements, fairness review, and restrictions on contracting around – seem inadequate to meet the new challenges of digital transformation. In order to preserve – or rather recreate – the architecture of choice for private contracts, the paper argues for a new regulatory strategy: In order to strike the right balance between protecting private autonomy and avoiding significant imbalances, the regulatory objective should be to ensure the impartiality of platforms by focusing on the structural conditions of their rule-making.","PeriodicalId":124241,"journal":{"name":"European Review of Contract Law","volume":"96 1","pages":"300 - 320"},"PeriodicalIF":0.0,"publicationDate":"2023-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139226072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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