EU law imposes a general duty of information disclosure for most on premises, distance and off premises contracts.120The trader must provide information on a number of issues (details about the trader, main characteristics, total price, duration, cancellation rights if any, delivery, . . .)121 before the consumer is bound by the
exploitation of the consumer or where the obligation of the consumer is excessive, harsh or unconscionable. Where the court must determine whether a consumer consented to a contract, it shall consider the condition of the parties, the circumstances in which the contract was entered into and the benefits arising from the contract for the consumer. See in more detail, the contribution of Arbour to this book.
120The general information duty in EU law stems from Directive 2011/83/EU on consumer rights, O.J.2011, L 304/64; the directive harmonised the information duties for contracts other than distance and off premises contracts but allows the member states to adopt or maintain additional pre-contractual information requirements (see Art.5 (4); some member states made use of this option but only to a very limited extent: see e.g. Poland, Belgium and to a larger extent France).
Specific pre-contractual information requirements for distance and off-premises contracts are imposed by Article 6 of the Directive. The Directive also excludes a number of contracts from its scope, e.g. an on premises contract which involves a day-to-day transaction and which is performed immediately at the time when the contract is entered into (on-the-spot on-premises contracts).
121The option in the Directive to include language requirements regarding the contractual informa- tion is taken up by some member states; see e.g. Poland, Italy, France (e.g. on consumer demand businesses must provide a copy of the model contract they normally conclude in French). Romania and Greece further impose specific language requirements in accordance with the European food labelling regulation. These language requirements must be reconciled with the case law of the Court of Justice that allows member states to impose specific language requirements unless full informa- tion of consumers may be achieved by other means such as pictograms, symbols, labels,figures etc.
The language used by the trader often has an impact on the national judges’ assessments of transparency of contract terms, especially when the contract terms are provided to the consumer in another language than the official language of the territory where the contract is offered.
However, the Unfair Contract Terms Directive (O.J.1993, L 95/29) does not contain any clarifi- cation in this respect. Hence legal scholars argue that transparency in a cross-border context implies
contract. The information must be provided in a clear and comprehensible manner, if that information is not already apparent from the context.122
The Japanese Consumer Law Code is largely inspired by the French Consumer Code and hence contains a general pre-contractual information duty imposed on the trader with the aim of providing consumers with the necessary information in relation to the content of the contract prior to the conclusion.123 To that extent Japanese law also imposes transparency requirements: information about the content of the contract must be clear, without ambiguities, comprehensible and intelligible.124
The consumer’s right to information in Brazil is grounded in the objective good faith. The Brazilian Consumer Protection Code lists this right among the consumer’s basic rights which secure him the means to decide freely in an informed manner. The offer and the presentation of products must be done with correct, clear, precise and ostensive pre-contractual information125relating to particulars such as the charac- teristics of the goods and services, the price, guarantee, duration, risks to health and security of consumers that goods or services may present etc.. The information must also be provided in Portuguese.126 The fact that the disclosed information must enable the consumer to take transactional informed decisions in freedom implies that businesses also must clarify the effects of the contracts and the risks they pose to consumers. Furthermore the qualified consumer consent seems to imply that sellers must avoid the excess of information (puffing/excess of marketing promotion: using exaggerations that cannot be objectively verified) and must adjust the information content in function of the targeted audience and the specificities of the product or service concerned, as the consumer is usually unaware of the technical language in contracts and the precise effects resulting from it.127In that regard the Superior Court
that consumers are provided information on contract terms in the same language as the one in which they were approached by the seller, see in particular Loos (2017), pp. 54–59.
122Additional European rules on the form into which this information is to be provided by the trader in case of specific types of contracts will be left out of the analysis here.
123See the contribution of Nozawa to this book.
124If a contract term is not or insufficiently intelligible the judge will interpret the term in favour of the consumer. See alsoinfra.
125Brazilian law also imposes information duties during the contractual phase and after the conclusion of the contract.
126See the contribution of Donato Oliva to this book.
127See more on this topic in the contribution of Donato Oliva to this book. The Civil Codes in the Member States of the European Union often contain specific rules about consumer’s consent to contract clauses. The German BGB for instance excludes so-called surprising clauses from becom- ing part of the contract. Surprising clauses are according to the Bundesgerichtshof terms that are unusual and which the other party to the contract cannot be expected to have been aware of (see BGH 26 February 2013–XI ZR 417/11,NJW2013, 1803). Thus a clause that assigned costs to a buyer of real estate although the contract was presented as an‘all-inclusive price’-contract, was held to be surprising as well as charging for services that ordinarily were gratuitous (see respectively BGH 26 July 2012–VII ZR 262/11,NJWRR 2012, 1261 and BGH 29 September 1983,NJW 1984, 171). However if an under normal circumstances surprising term is brought to the consumer’s
of Justice has emphasized that information must be complete and useful, prohibiting the use of loose, redundant and useless information for consumers. Furthermore all information provided to the consumer which is sufficiently precise is binding upon the trader and prevails contractual clauses stating the opposite unless the contractual clauses are more advantageous for the consumers.128
Also Chinese law imposes a general pre-contractual information obligation the exact scope of which isinter aliadetermined by theuberrimafidesdoctrine. This general obligation is further complemented by different sets of detailed information requirements imposed by the Consumer Protection Law and the Advertisement Law.129 In absence of specific standards, information about the so called vital interests of consumers, as interpreted by courts, must be provided so that business operators are not required to provide consumers with general public information. No specific rules on how this information must be disclosed exist in China but the Consumer Protection Law requires standard terms on liability exemption and restriction to be conspicuous for consumers. A variety of sanctions including in certain circumstances punitive damages (of three or ten times (if defective informa- tion affects the safety of foodstuffs) the purchase price) further strengthens the pre-contractual information obligations.130
Turkish law had no express general obligation to provide pre-contractual infor- mation to consumers, but detailed information requirements are imposed by law with regard to specific types of contract such as for instance credit contracts, mortgage contracts, distance contracts (financial services and others), off-premises contracts and time-share contracts. Under the impulse of European law and with a view to the accession to the EU a new Law on Consumer Protection was adopted in 2014.
Nowadays, a general pre-contractual information duty is implicitly deduced from this Law which imposes a number of information particulars.131
In common law systems there is no general obligation on businesses to provide consumers with pre-contractual information. For instance, the common law judges in the UK did not develop any general duty of disclosure nor a particular form into which the information mustfit. However, significant inroads on this rule have been made in English contract law to implement EU law.
Equally, in Singapore, the law is still very much influenced by the common law doctrinal rules so that one may conclude that there is no general articulation of transparency requirements regarding disclosure of information.132 Statutory
attention, it would forfeit its surprising character and could no longer be sanctioned (see BGH 18 February 1992–XI ZR 126/91,NJW1992, 1823). See more extensively on this issue, the contribution of Schinkels to this book.
128See more on this topic in the contribution of Donato Oliva to this book.
129See the contribution of Yang to this book.
130See the contribution of Yang to this book.
131See more extensively on this subject the contribution of Baysal to this book.
132Based on the responses to the questionnaire from professor G. Low, Singapore Management University,garylow@smu.edu.sg.
exceptions to the absence of a general duty for businesses to provide consumers with pre-contractual information are piecemeal, targeting specific types of contracts or sectors where consumers tend to contract without the requisite voluntary consent.133 Taiwanese law takes a much stricter stance as it is characterised by anex ante control of the content of contract clauses by the consumer himself but also, and more importantly by the administrative authorities. Before the signing of the contract the Consumer Protection Act grants the consumer a preview period which allows him to read the contract clauses. Thereto businesses must in principle send a written form of the standard contract to the consumer. Clauses which are hard to notice or recognize due to the font, printing or other causes will not be included in the contract, unless the consumer otherwise specifies so. Any clause signed during the time when consumers are deprived of the preview period will not be part of the contract, unless again the consumer indicates that the clauses must be included.
Furthermore, the administrative authorities have the competence to exercise pre-contractual controls of the standard clauses included in contracts in business sectors. As a result the central authorities have investigated the contract clauses in a significant number of business domains which they select. In those sectors the authorities have issued clauses that must be included in the contract as mandatory clauses and also have prohibited the use of certain clauses. The mandatory clauses thus announced are automatically included in the contracts of that specific business domain, even if the signed contract does not stipulate them. If a contract in a certain business area contains clauses that are prohibited by the central authorities for that sector, these clauses are invalid.134This extensive prior control by the administrative authorities is increasingly criticized in Taiwan as overly restrictive for businesses and overprotective for consumers.135
133In time share and colportage contracts information about the contract and the consumer’s right to withdraw and how to invoke that right must be contained in a‘consumer information notice’. This notice must be given in writing in hard or soft copy, e.g. via email.“The statutory exceptions do not specify when businesses must disclose such information, but if businesses omit to provide the consumers information about his right to withdraw the contract, the consumer may withdraw from the contract at any point in time in the life of the contract, as failure to provide such information will in principle not be seen as a defect in consent leading to recission. Consequently businesses have an incentive to disclose this information as soon as practicable”. Based on the responses to the questionnaire from professor G. Low, Singapore Management University,garylow@smu.edu.sg.
134The administrative ex ante control resulted in more than 80‘model’contracts. For reasons of consumer protection the freedom of contract and party autonomy have been replaced by mandatory and prohibited clauses imposed by the central authorities.
135Based on the responses to the questionnaire from professor Jiin Yu Wu, National Chengchi University, Taiwan,jywu@nccu.edu.tw.