Standardisation of Agreement in EU Law. An Adieu to the Contracting Parties ?

Abstract

This chapter claims that EU law is establishing general rules for the formation of contracts by following a radically new approach to procedural fairness. Agreement, the core element in contract formation, is being transformed by becoming standardised as it ignores the characteristics of the contracting parties. The transformation results from the use of legal standards to determine valid contract formation. Those legal standards include the ‘average consumer’ and the ‘average retail (investment) client’, which ignore individual knowledge, expertise and causation – a radical shift from traditional contract law. MEUCL treats all members of the class alike. It is claimed here that this trans- formation is occurring despite the recurrent affirmation that EU law is without prejudice ‘to contract law and, in particular, to the rules on the validity, formation or effect of a contract’