Unfair Terms in Contracts Between Businesses

Abstract

This paper examines the main possible rationales for judicial control of unfair contract terms (unequal bargaining, distributive justice, market failure, paternalism, the ethos of the market, comparative law, and the nature of an optional instrument) and concludes that none of them requires a distinction, in this respect, between business to consumer (B2C) and business to business (B2B) contracts. Unfair terms review in B2B contracts, under the same unfairness test as in B2C, is compatible with any plausible rationale for such a review and is even required by several of them.

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