Geraint Howells is Executive Dean of Business, Public Policy and Law and Visiting Professor of Commercial Law at the University of Manchester. He was previously Chair Professor of Commercial Law and Dean of the Law School at City University of Hong Kong. He is a former President of the International Association of Consumer Law. He previously held chairs at Sheffield, Lancaster and Manchester and has been head of law schools at Lancaster, Manchester and City University of Hong Kong. He has been a barrister at Gough Square Chambers, London (though not currently practising). His books include Comparative Product Liability, Consumer Product Safety, Consumer Protection Law, EC Consumer Law, Product Liability, European Fair Trading Law, Handbook of Research on International Consumer Law, The Tobacco Challenge and Rethinking EU Consumer Law. He has undertaken extensive consultancy work for the EU and UK government as well as for NGOs.
Pacta sunt servanda and consumer protection
A core principle of contract law is that once bargains are struck parties should normally perform them as agreed. However, in the consumer context many consumers believe they have the right to return goods even if they are not defective. This attitude is partly due to commercial practices, but also to the introduction of numerous statutory rights to withdraw. These statutory rights give rise to theoretical debates as to whether the contract is rescinded or was always conditional, but more importantly pose practical compliance requirements on traders and clearly limit their contractual autonomy . The motivation for the laws are often mixed based on (a) seeking to ensure consumers are well informed, and /or (b) do not enter contracts under pressure and/or (c) can reflect on expensive purchases. They give rise to very technical discussions of how to balance the rights of traders and consumers, e.g. as to length of withdrawal period and in particular the effect of failing to provide information on that period. They are now seen as important consumer rights, but their effectiveness has been doubted due to behavioural insights into consumers use of such potential self-help remedies. In recent times tights of withdrawal have faced challenges on two fronts. Personalised law provides the prospect of gearing the right to individual preferences. However, those behavioural insights into consumers’ cognitive limitations should caution us against trusting in their ability to properly value the right of withdrawal and favour maintaining standardised rights. This also promotes consumer education about their rights. More challenging is the environmental criticism that unfettered use of the right is wasteful and generates unwarranted transportation needs. This should prompt us to reflect on whether these rights can be amended to take these concerns into account, but also to acknowledge that the goals of consumerism and environmentalism are not always aligned. That will discomfort some advocates who often see the causes as linked by a common concern for social justice.