A study of unfair terms in consumer transactions

Abstract

The aim of my work is to undertake an analytical study of unfair terms in consumer transactions. I will focus primarily on the regulation of unfair terms by the European Community. Some twenty years of debate led to the EC Council Directive 93/13 on Unfair Terms in Consumer Contracts. This Directive establishes an advanced system regulating the substance of consumer contracts. It is also the first effort to harmonise, at least partially, the legal regime of unfair terms in the different Member States of the Community. However, a study of the provisions of the Directive will show that wide gaps must be filled before the protection of the consumer from unfair terms can be called comprehensive. Moreover, while the Directive goes a long way towards safeguarding the consumer who is entering or has entered a contract with a trader, a comparative study will reveal that the legislation which is in place in some of the Member States and in other countries is more progressive and more consumer-oriented than the Directive. The role of consumer associations and public bodies such as the Consumer Ombudsman will be emphasised. It will be seen how - up to now - Malta lacks a comprehensive consumer law which prohibits the use of unfair terms and which provides adequate means of consumer redress. Therefore the analysis of the Council Directive and the various foreign systems will guide me to propose suggestions for possible inclusion ·into a consumer law on unfair terms which might in future be drafted in Malta.