Branding Pro-Consumer Contracts : Developing a New Consumer Protection Technique in Light of the CESL Proposal

This Article proposes a new legislative technique for consumer protection in sales law. It develops the idea of “branding” optional standardised contracts, which a business could offer as applicable law to its clients by simply stamping the symbol of the contract-brand on the package of its products. The article shows how this system would overcome the shortcomings of previous academic proposals based on the “rating” [2009] or on the “labelling” [2011] of consumer contracts.The key feature of this “branding” idea is that it bases its effectiveness on freedom of contract and on market competition, rather than on burdening consumer transactions with further, supposedly “protective”, regulations. This Article argues that this technique would allow consumers to easily distinguish - without any need to read or understand the fine print - the superior “pro-consumer quality” of the contracts identified by the “brand” stamped on certain products. Thus, by reducing contract-reading costs to zero, this mechanism can remarkably enhance consumer comparison shopping, therefore serving as an effective protection device even for illiterate consumers, for non-native speakers (such as newly arrived immigrants) and for the visually impaired.The mechanism of optional standardised contracts is borrowed from the Common European Sales Law currently under discussion in the EU, but its content is amended in order to overcome the many deficiencies of the CESL. In particular, the “branding” idea proposes to avoid both pre-contractual mandate disclosure and the imposition of mandatory contract terms, both of which have proven to be burdensome and ineffective consumer protection devices (at least in the sale of goods context)