From Consumer Contracts to Asymmetric Contracts: a Trend in European Contract Law?

The author discusses two questions. The first is a question in fact: do ‘consumer contracts’ still represent the central and privileged category they used to be in European contract law? A tentative answer is given, by pointing out the increasing number of contract regulations where the party given protection against a dominant business is not (necessarily) a consumer, but is a (weaker) business himself (unbalanced business-to-business contracts), or more often a client purchasing goods or services in the market (supplier-to-customer contracts). Evidence of this is taken from a number of Directives and Regulations, as well as from the DCFR and PECL, and also from national regulatory experiences, such as that relating to the reform of unfair terms legislation in the UK. The conclusion is that European legislator is more and more focusing on asymmetric contracts rather than on consumer contracts, whereby asymmetric contracts are all contract relationships between a dominant business and another market player (be he a consumer or a non-consumer) who suffers inequality of bargaining power depending on his objective market position. The category of consumer contracts tends therefore to lose its traditional centrality and predominance in the frame of European contract law. The second question implies evaluations as to whether such process is desirable or not. The author argues that it is desirable both politically and technically: from the political standpoint, it broadens the scope of market regulation oriented to justice and efficiency goals; from the technical standpoint, it may help the contract law system to face the increasing risk of fragmentation induced by the special regime of consumer contracts, and recover unity and coherence