Consumers as Unassisted Minors: Asymmetrical Sanction for Unfair Contract Terms
Round 1
Reviewer 1 Report
One general comment is that the paper – which is original and worthwhile to read – should show better on which foundations it stands. In many cases, it is simply argued that something is as it is described, without any reference to literature or case law. For instance, on p. 8, the Polish notion of suspended ineffectiveness is explained. After mentioning the corresponding provisions in the Austrian, German and Swiss Civil Codes, it is stated that these provisions confirm that the notion of suspended ineffectiveness ‘originated in the German legal tradition’. That is not sufficiently demonstrated. First, it may very well be that other legal systems (e.g. those based on the French or Italian legal tradition) demonstrate the same notion. Second, this mere listing does not show that the Polish notion is the same or similar to the concept used in Austrian, German and Swiss law. This statement therefore calls for more substantiation, e.g. by referencing German literature. Similarly, on p. 11 European case-law on unfair terms in foreign currency loan contracts is (rightly) implied, but the authors fail to refer to the cases at hand.
The same is true for the parts on Roman law. In section 4 the situation of the protection of minors and/or of adolescents under Roman law is described without one single reference to literature. This way the reader cannot ascertain whether he can rely on what is written – and therefore on whether the statements made by the authors are valid. Surprisingly, section 5 deals again with Roman law negotium claudicans first. This part should be integrated in section 4 when describing there. The text in section 5 does contain references to literature and therefore is more scientific that the current text of section 4.
I suggest not to mention the 2003 paper by Nieuwenhuis already in the abstract: readers that are not aware of that paper, might be put off from reading the paper. In the introduction to the paper itself, it certainly can feature. In the text, Ulpian and Ulpianus is used interchangeably. I would suggest to pick one.
In the introduction, it says (regarding Roman law) ‘the pupillus was not obligated to the buyer (sibi non obligat).’ Later on in the text it is made clear that in the example (from Ulpianus) that the pupillus is indeed the seller, but when reading it I thought that this was a mistake and the pupillus must have been the buyer. This can be clarified by adding after the pupillus ‘(when acting as a seller)’.
At the bottom of p. 2 and the top of p. 3 (and repeated in more or less the same words on p. 12), it is suggested that the right of withdrawal stems from the 1999 Consumer Sales Directive. Instead, it stems from the 1997 Distance Contracts Directive (and the 1985 Doorstep Selling Directive) and was recodified in the 2011 Consumer Rights Directive. I suggest to remedy this and to avoid repetition – deal with this only on p. 2/3 or on p. 12.
The authors could think of slightly rewriting section 2 of the paper – the historical background of the notion of the negotium claudicans is mentioned a few times, and the paper would be stronger if the repetition would be less. Similarly, the quote from Ulpianus is placed on p. 3, but mentioned already on p. 2. As regards that quote: it would be useful to have an English translation: for a reader that does not read Latin, this quote could be a reason to stop reading. In fact, the translation is (more or less) provided in the sentences after that, but the reader would need to read on before realizing that.
At the top of p. 4, the Italian notion of nullità di protezione should be translated as ‘nullity of protection – and that then indeed qualifies as a relative nullity.
On p. 6: I would not consider the DCFR a failed project of common EU private law. That it did not (directly) lead to formal legislation by the EU does not mean that the project itself was a failure. As a work of scholarly effort, I would rather think that it was a huge success.
On p. 7, line 336, it states: ‘A contract term not individually negotiated is not binding.’ This is incorrect: the text should read (emphasis added): ‘An unfair contract term not individually negotiated is not binding.’ Fair contract terms that have been agreed upon obviously are binding, whether or not they have been negotiated individually.
At the top of p. 8, it is argued ‘The solution is the unilateral introduction of unfair terms – their unilateral effectiveness, however, it is possible that their application will fulfil the role of penalty for the contracting party, as in the case of a term regulating liability for delay or improper performance. So far, such a case has not been the subject of the CJEU's assessment, but it could allow for the analysis whether this sanction is really neutral.’ If I understand correctly what is meant here, such a case has already been decided. In CJEU 27 January 2021, joint cases C-229/19 and 289/19, ECLI:EU:C:2021:68 (Dexia Nederland), the Court held that when the trader has introduced an unfair penalty clause, that term could not be replaced by the otherwise applicable default rules on damages. Earlier, the Court had held that such replacement is also not possible by the trader (directly) invoking the default rule instead of the contract term: CJEU 26 January 2017, case C-421/14, ECLI:EU:C:2017:60 (Banco Primus). This means that the voidness of a term (here: the penalty clause) under Art. 6(1) Directive indeed leads to a punishment of the trader, as that trader cannot ask for any compensation anymore.
In section 4 a more clear shift in focus should be made between the description of the protection of minors and/or of adolescents under Roman law and (the comparison with) the protection of consumers under EU law. That can be done by adding a white line here and there.
Author Response
Dear Reviewer,
I am extremely grateful for the tremendous valuable suggestions and comments! I've completely rearranged the text, so in order to make sure that not everything is in red, especially text that hasn't changed but was previously in a different place, I've highlighted these important new changes in green. Detailed responses are available in the cover letter.
If I should still work on the text, I am ready to do so.
Author Response File: 
Author Response.pdf
Reviewer 2 Report
First of all, thank you for the opportunity to review this work. The manuscript addresses a very interested topic, that is, the comparisson between negotium claudicans and sanction for unfair contract terms. To do this, the author carries out a historical analysis and a legal comparison at different levels.
However, there are some important aspects for improvement that need to be addressed, namely:
- First, the very organization of the manuscript, at certain times, is chaotic and complex for the reader to follow. The introduction should contain the following elements: introduce the topic, describe the background, state the author's research problem, specify the objective(s), and map out the paper. However, the author makes an excessively long introduction that does not make clear any of the previous elements. In the opinion of this reviewer, I consider that the author should rewrite the introduction taking into account the elements described above in a more concise and clear way.
- Secondly, the section "Asymmetrical sanction for unfair contract terms..." is extremely long and sometimes this causes the reader to miss the important ideas that the author points out. For this reason, it would be advisable for this section to be better structured and include subheadings that indicate the main ideas and develop them. The same goes for section 4 and 5.
- Other minor suggestions. It would also be advisable to add a somewhat more up-to-date bibliography, since this is quite old.
Author Response
Dear Reviewer,
I am extremely grateful for the tremendous valuable suggestions and comments! I've completely rearranged the text, so in order to make sure that not everything is in red, especially text that hasn't changed but was previously in a different place, I've highlighted these important new changes in green. Detailed responses are available in the cover letter.
If I should still work on the text, I am ready to do so.
Author Response File: Author Response.pdf
Round 2
Reviewer 2 Report
After the changes made to the paper, it is ready to be published.
