‘Fraud’ and ‘Misleading Commercial Practices’: Modernising the Law of Defects in Consent

European Review of Contract Law [ERCL], 12, 2016, pp. 307-334

Bocconi Legal Studies Research Paper, No. 3397960

28 Pages Posted: 29 May 2019 Last revised: 25 Jun 2019

See all articles by Francesco Paolo Patti

Francesco Paolo Patti

Bocconi University - Department of Law; Bocconi University - Bocconi Law Department

Date Written: October 1, 2016

Abstract

The rules provided by the civil codes on defects in consent were designed at a time when the notion of consumer law did not exist and fairness at the pre-contractual stage was not widely considered as a value worthy of protection. Matters have changed radically in the last three decades. The proliferation of rules protecting consumers on a European level, especially through information duties and rights of withdrawal, and the growing impact of general clauses, has led to a fragmentation of domestic contract law. This clash of different sets of rules is particularly conspicuous in the field of unfair commercial practices as the European legislator has not made provision for specific private law remedies for individual consumers in cases of misleading and aggressive commercial practices. This article addresses the particular issue of the applicability of the law of fraudulent misrepresentation to cases of misleading commercial practices. The purpose is to reconsider ‘fraud’ in terms of a defect in consent, in a manner that is both more in line with the modern features of European contract law and better able to counteract new market strategies based on exploiting cognitive weaknesses. The focus is thus put on the relationship between pre-contractual information duties and defective consent, as well as on some insights of law and economics, which demonstrate that ‘consent theories’ or ‘will theories’ cannot provide precise criteria to indicate when a contract should be void. In conclusion, a possible legislative intervention aiming to substitute the rules on fraud for a set of remedies for violation of information duties is discussed.

Keywords: Consumer Law, Contract Law, Unfair Commercial Practices, European Contract Law, Defects in Consent

JEL Classification: K10, K12, K22

Suggested Citation

Patti, Francesco Paolo, ‘Fraud’ and ‘Misleading Commercial Practices’: Modernising the Law of Defects in Consent (October 1, 2016). European Review of Contract Law [ERCL], 12, 2016, pp. 307-334, Bocconi Legal Studies Research Paper, No. 3397960, Available at SSRN: https://ssrn.com/abstract=3201838

Francesco Paolo Patti (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Bocconi University - Bocconi Law Department ( email )

Italy

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