Regulatory Techniques in Consumer Protection: A Critique of European Consumer Contract Law

Omri Ben-Shahar
Oren Bar-Gill

This Article classifies the consumer protection techniques that European contract law employs into four categories: Mandatory arrangements; disclosure; regulation of entry to and exit from contracts; and pro-buyer default rules and contract interpretation. It argues that these techniques are far less likely to succeed than advocates, including the European Commission, believe, and that they may bring about unintended consequences and hurt consumers. The techniques and their limits are illustrated through a study of the proposed Common European Sales Law (CESL). The Article argues that the ambitious pursuit of consumer protection goals is also likely to interfere with the other main goals of European contract law: harmonizing the laws of member states, encouraging cross border trade, and improving consumers’ access to markets.