The Experts below are selected from a list of 58338 Experts worldwide ranked by ideXlab platform
Meryll Dean - One of the best experts on this subject based on the ideXlab platform.
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Unfair Contract Terms: The European Approach
The Modern Law Review, 1993Co-Authors: Meryll DeanAbstract:On 5 April 1993 the EC Directive on Unfair Contract Terms was adopted.' This is one of the most significant pieces of consumer protection legislation to come from Brussels and will have a far reaching impact on the United Kingdom law of Contract. Major changes can be expected in the way that the law protects the consumer. In particular, implementation of the Directive will provide an opportunity to deal with the inadequacies of the inaccurately named Unfair Contract Terms Act 1977. It should be noted that in dealing with an area of substantive law, albeit through the mechanism of consumer protection, the Directive could create a precedent for intervention in other areas of the law of Contract.
Kevin D Mcgillivray - One of the best experts on this subject based on the ideXlab platform.
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Is a Picture Worth a Thousand Terms? Visualising Contract Terms and Data Protection Requirements for Cloud Computing Users
2016Co-Authors: Samson Yoseph Esayas, Tobias Mahler, Kevin D McgillivrayAbstract:The following article evaluates two models for providing purchasers of online digital content, including cloud computing services, with visual notice of Contract Terms and data collection practises. Visualisation of Contract Terms and privacy policies has the potential to provide cloud consumers with an improved means of understanding the Contract Terms they are accepting when entering into an agreement with a Cloud Service Provider (CSP). The following paper examines two concrete proposals or models for the visualisation of Contract Terms and privacy practises as compliance tools in the European context. The article focuses primarily on consumer and data protection law. Although the visualisation models are not currently binding or legally required, they start an important conversation on how such Terms can be more effectively conveyed.
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ICWE Workshops - Is a Picture Worth a Thousand Terms? Visualising Contract Terms and Data Protection Requirements for Cloud Computing Users
Current Trends in Web Engineering, 2016Co-Authors: Samson Yoseph Esayas, Tobias Mahler, Kevin D McgillivrayAbstract:The following article evaluates two models for providing purchasers of online digital content, including cloud computing services, with visual notice of Contract Terms and data collection practises. Visualisation of Contract Terms and privacy policies has the potential to provide cloud consumers with an improved means of understanding the Contract Terms they are accepting when entering into an agreement with a Cloud Service Provider (CSP). The following paper examines two concrete proposals or models for the visualisation of Contract Terms and privacy practises as compliance tools in the European context. The article focuses primarily on consumer and data protection law. Although the visualisation models are not currently binding or legally required, they start an important conversation on how such Terms can be more effectively conveyed.
Nenad Gavrilovic - One of the best experts on this subject based on the ideXlab platform.
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Unfair Consumer Contract Terms Under Macedonian Law: How the Old and the New Function in Practice
Journal of Consumer Policy, 2013Co-Authors: Nenad GavrilovicAbstract:This article analyses the functioning in practice of the system of substantive regulation of unfair Terms in consumer Contracts, introduced into Macedonian law as part of the harmonization obligations of the EU accession process. Specifically, the article seeks to establish the possible reasons for the absence of substantial evidence of application of the rules on unfair Contract Terms in consumer Contracts in Macedonian practice. In providing an explanation, the focus is on the transposition of the consumer acquis and the Unfair Contract Terms Directive into national law, the enforcement structure for consumer law, and the relationship with the pre-existing civil law. In sum, the inconsistencies and incompleteness of the transposition, the weak and complex enforcement structure, as well as the unsettled relationship with the already existing civil law rules on similar topics have all contributed to weaken the practical significance of the special law on unfair Contract Terms.
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Unfair Contract Terms in the Contract law of the Republic of Macedonia
2012Co-Authors: Neda Zdraveva, Nenad Gavrilovic, Borka TusevskaAbstract:The answer to the question what would constitute a Contract term in the recent years, espe- cially with the introduction of the e-commerce, is changing. Traditionally a Contract is understood as legal act that the parties have negotiated and agreed upon. The changes in the manners of trade of goods and services have brought a new light to this definition. Very often in the contemporary trade the parties (only) agree to what has been proposed and drafted by the other party. This provides for an opportunity such position to be misused to the detriment of the other party, which does not have the time or the knowledge to properly understand the meaning of specific Contract clauses. The law is not and cannot be silent on this situation. Its role is to provide grounds for fair dealings and equal- ity of the parties. The legal mechanisms for the assessment of the fairness of specific Contract Terms exist for this purpose
Tjakie Naude - One of the best experts on this subject based on the ideXlab platform.
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Factors relevant to the assessment of the unfairness or unreasonableness of Contract Terms : some guidance from the German law on standard Contract Terms
2015Co-Authors: Tjakie NaudeAbstract:Section 52(2) of the Consumer Protection Act, 68 of 2008 ("CPA") lists factors that courts "must" consider when applying section 48, the prohibition of unfair Contract Terms. Section 52(2) could be improved, inter alia as it does not contain sufficient guidance about the substantive fairness of Contract Terms. Several other factors, not currently listed in section 52(2), have crystallised in German case law and academic commentaries on § 307(1) of the German Civil Code, which essentially provides that "provisions in standard business Terms are ineffective if contrary to the requirement of good faith, they unreasonably disadvantage the other party to the Contract with the user." Although the scope of application of § 307(1) is different from that of section 48, the German case law and academic commentary are useful as most Terms in consumer Contracts are not negotiated anyway. German courts identify and weigh the interests of both parties in the light of the principles of proportionality and necessity. The degree to which the term differs from what the law would be in its absence is an important factor. In relation to Contract Terms governing risk allocation, the main questions asked are in whose sphere the risk is likely to arise and which party is in a better position to avoid the risk and to insure against it. Conformity with established standards in the sector is also a relevant factor, although its application is qualified. The other Terms of the Contract or of another Contract on which it is dependent are also relevant. Principles that are more specific have developed in German law in respect of the possibility that other Terms may increase or decrease the suspicion against a clause. Material inequality between the parties is also a relevant factor, which the South African Law Commission has formulated as whether there is a lack of reciprocity in an otherwise reciprocal Contract. The article also lists further factors set out in the EC Directive.
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Enforcement procedures in respect of the consumer's right to fair, reasonable and just Contract Terms under the Consumer Protection Act in comparative perspective
South African Law Journal, 2010Co-Authors: Tjakie NaudeAbstract:Part G of Chapter 2 of the Consumer Protection Act seeks to protect a consumer's 'right to fair, reasonable and just Terms and conditions'. The purpose of this article is to investigate more closely the enforcement procedures available in respect of a consumer's right to fair Contract Terms. This involves a study of other parts of the Consumer Protection Act, in comparative perspective. The overarching question that will be addressed is whether the enforcement procedures and other parts of the Consumer Protection Act relevant to unfair Contract Terms reflect an effective, preventative or proactive control paradigm to operate in tandem with reactive or 'ex post facto' judicial control over individual Contracts. This includes an investigation of the path that a consumer complaint about an alleged unfair term must follow. The article is structured in the following way. First, a brief comparative overview of preventative control mechanisms in the United Kingdom of Great Britain and Northern Ireland is provided. Thereafter, several aspects of a system of general use challenges are considered. These are, first, which agencies are, or should be empowered to bring general use challenges. The second question to be considered is whether a public enforcement body is, or should be obliged to act upon a complaint by applying for an interdict if negotiations with the supplier fail. Thirdly, the powers that should be granted to an enforcement body to facilitate general use challenges are considered, as well as the procedure that ought to be followed in bringing such challenges. Thereafter, the possible court orders for which unfair Terms legislation should ideally provide to facilitate preventative control are considered. Fifthly, other parts of the legislation (in addition to the 'procedural part') which should be geared towards a preventative control paradigm are identified. Thereafter extra-legislative strategies will be examined, especially action on a sectoral level and dissemination of information. Finally, the need to provide for regional co-operation is discussed.
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The use of black and grey lists in unfair Contract Terms legislation : a comparative perspective
South African Law Journal, 2007Co-Authors: Tjakie NaudeAbstract:This contribution considers the mechanism of lists of prohibited and suspect Terms ('black lists' and 'grey lists') in unfair Contract Terms legislation from a comparative perspective. It sets out the arguments in favour of the use of black and grey lists and considers and rejects criticism against their use. A comparative study leads to identification of general principles relevant to the drafting of lists. Some of the questions discussed are whether lists should be confined to consumer Contracts and non-negotiated Terms and whether and how a grey list should affect the burden of proof, on both of which international practice diverges. Finally, fourteen categories of Terms which are commonly listed in various countries' legislation are identified and discussed.
Alexandra Sims - One of the best experts on this subject based on the ideXlab platform.
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new zealand s unfair Contract Terms law fails to incentivise businesses to remove potentially unfair Terms from standard form Contracts
2020Co-Authors: Victoria Stace, Emily Chan, Alexandra SimsAbstract:This paper presents the results of a study undertaken by Victoria University of Wellington in association with the Ministry of Business, Innovation and Employment over the period December 2018 to August 2019, to assess whether businesses that are offering goods or services to consumers in New Zealand on standard form Terms are including potentially unfair Contract Terms in those Contracts. The study compared the 2015 and 2018 versions of the same standard form Contracts in relation to 119 businesses to assess if those businesses had reduced the number and nature of potentially unfair Terms appearing in their Contracts since 2015. The study also considered the number and nature of potentially unfair Terms appearing in Contracts of a total of 134 businesses offering goods and services in 2018. The study found that all the Contracts examined in 2018 contained potentially unfair Terms and that the number of potentially unfair Contract Terms in standard form Contracts had increased between 2015 and 2018.
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Unfair Contract Terms: A new dawn in Australia and New Zealand?
Monash University Law Review, 2014Co-Authors: Alexandra SimsAbstract:Australia finally regulated unfair Contract Terms under its Australian Consumer Law and New Zealand has included unfair Contract Terms in its Fair Trading Amendment Act 2013 (NZ), which will come into force on 18 March 2015. Traders will in effect bear the burden of proving that Terms are fair by showing that they are reasonably necessary to protect the trader's legitimate interests. While the regulation of unfair Contract Terms is welcome, there is concern that the Australian and New Zealand courts may not give proper effect to the provisions and so would allow unfair Contract Terms to continue to be used. The courts must accept that the classical theory of Contract law, in relation to consumers, is dead, and so too is the rational consumer. This paper argues that for the unfair Contract term law to achieve the legislatures' desired outcome of eliminating unfair Contract Terms in standard form consumer Contracts, the courts in both New Zealand and Australia must move from their traditional focus on procedural fairness to addressing substantive fairness and give effect to both the wording and purpose of the provisions. Moreover, there are legislative lapses in both Australia and New Zealand that require urgent attention.
