Mandatory Contract Law : Functions and Principles in Light of the Proposal for a Directive on Consumer Rights

Starting from the theoretical underpinnings of contract law, mandatory rules should be the exception. In the reality of current European legislation, mandatory law is not the exception but the rule. The obvious explanation is that the EU has focused on consumer law, i.e. on the regulation of transactions between a business and a consumer. In a B-to-C relationship, the consumer is perceived as the weaker party which requires protection against the more powerful business. The following article tries to dismantle the assumptions that consumers are weak and that the ‘weakness’ of consumers forms the normative basis for the body of Directives we now have before us. The Draft Proposal of a Directive on Consumer Rights is used as an object for analyses from the perspectives of comparative law and economic reasoning. The argument is that, while there are important areas where mandatory law is justified, the card of mandatory law has been overplayed in important respects. In particular, the petrification of the law of sales that began with the Directive on Consumer Sales and Guarantees seems to be unjustified. Within a system that allows for court control over standard contract terms, the need for mandatory law is negligible. Where court control over standard terms is perceived not to be sufficient, ‘options’ should be used instead of mandatory law. While options preserve party autonomy, they do limit freedom of choice to a set of immutable alternatives. And in doing so, they reconcile party autonomy with legal certainty