Publication: Reducing Inequality in Consumer Transactions: The Significance of Aggravated Vulnerabilities
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2023-02-26
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Whether consumer law should address inequality has been approached from various perspectives in Latin America and Europe. In Europe, EU consumer law has historically emphasized consumer empowerment and the Court of Justice of the European Union has predominantly elaborated its jurisprudence around the interpretive benchmark of the average consumer, that is, one who is presumed reasonably well informed, observant and circumspect. Conversely, Consumer Protection Statutes in Latin America started by emphasizing consumer protection and, by consequence, the courts have generally embraced the interpretive benchmark of the vulnerable consumer, that is, one who occupies a relatively although markedly vulnerable position in the market structure. In this article, I aim to demonstrate the consequences of this distinctive emphasis: the more consumer law moves towards empowerment and embraces the average consumer standard, the less sensitive it is to the vulnerabilities that impair consumer decision-making, which hinders this model’s capacity to address inequality in consumer transactions. Following the examination of the European experience, the article takes a closer look at consumer protection law in Argentina, where the courts embrace the task of using consumer law to reduce inequality. In particular, it focuses on the significant, recently introduced category of the hyper-vulnerable consumer; that is, consumers who find themselves in a situation of aggravated vulnerability due to age, gender, physical or mental state or social, economic, ethnic and/or cultural circumstances, any of which may cause special difficulty for the full exercise of their rights as consumers (Res. 139/2020). The choice of the Argentine case is motivated by the country’s paradigmatic shift from formal and abstract equality to a substantive and situated notion of the same that was introduced by the reformed Civil Code (2015), by the recently proposed Project of Reform of the Consumer Protection Statute (2018), which purports to advance novel regulation sensitive to inequality in consumer relations, and by the urgent need for responses to the structural inequality arising in the aftermath of the Covid-19 crisis from government, civil society, and social associations.
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Attribution-NonCommercial-NoDerivatives 4.0 International
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IE Law School
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Martínez Alles, M. G. (2024). Reducing Inequality in Consumer Transactions: The Significance of Aggravated Vulnerabilities.