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According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law tailored to specific individuals could affect both default and mandatory rules and provide for a more efficient and just legal system. The argument goes that such a flexible and technology-driven regulation is also capable of addressing the issue of unfair personalized pricing schemes applied by businesses in online transactions. The present contribution adopts a futuristic approach and investigates whether these doctrinal proposals could possibly pave the way for an amendment of the Directive 93/13 on unfair terms in consumer contracts. In doing so, the main elements of the unfair terms control are highlighted, together with their link with national default rules, which serve both as a benchmark for the assessment of the unfair character of the clause and as gap-fillers. Based on a comparison with the findings of US scholars, it then explores how the unfair terms control may change in order to reduce cross-subsidies to a minimum and tackle discriminatory pricing schemes. Finally, this article elaborates further on how the modifications could be implemented within a new enforcement mechanism, using a technology that would also cover so-called smart contracts.
personalization, unfair terms control, big data, consumer contracts. Motsclés: Personnalisation, Contrôle de clauses abusives, Grandes bases de données, Contrats conclus avec les consommateurs Schlüsselwörter: Personalisierung, Kontrolle missbräuchlicher Klauseln, Big Data, Verbraucherverträge

Abstract: The contribution aims to evaluate some problematic issues addressed by the UK Supreme Court decisions on penalty clauses, taking into account discussions among Italian scholars and rulings of Italian jurisprudence. The focus is put on the issue of whether the rule against penalties should be abrogated or extended, on the scope of application of the rule against penalties (i.e. if it is applicable to primary obligations), on the benchmark to assess whether the rule against penalties should be applied and, finally, on the interpretation of the expressions 'imbalance in the parties rights' and 'contrary to the requirements of good faith' established by the Unfair Terms Directive. In conclusion, in the light of the innovative judgment, an assessment of the relationship between contractual freedom and the need to protect the debtor of a penalty will be put forward.

AbstractThe 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.

Abstract: The Italian legislative provisions pertaining to penalty clauses are based on the French model in the Code civil. In contrast to the typical approach in common law systems, Italian law does not distinguish between penalty and liquidated damages clauses. A contractual penalty, agreed upon with the aim of causing the creditor to cease performance, is regarded as effective; however the extent of such penalty can be lowered by the court if it is clearly too high. Due to different matters at the European level, contract theory in the field of penalty clauses has focused on private law sanctions. Recent key decisions by the Italian Court of Cassation have, however, brought the compensatory function of the penalty clause to the fore. In this context, it is thus necessary to examine the relationship between contractual penalties, claims to performance, and compensation in order to assess the parties' autonomy when determining the function of penalty clauses. Where compensation is concerned, it is to be clarified whether the loss suffered is one of the criteria to be considered when assessing whether the extent of the penalty is appropriate. This article also refers to the content of the consumer code as well as other provisions concerning similar clauses, e.g., deposits. Finally, the Italian rules on contractual penalties will be compared with the corresponding rules in projects aimed at the harmonization of private law.