Corrective justice and its alternatives: an analysis on European Consumer Law.
Contemporary inequalities between the parties of commercial contracts, such as the professional vendors or service providers and the profane, unadvised consumers of goods and services represent one of the major themes, in contemporary legal thought. Such inequalities can be observed from an informational, psychological or financial angle. While in traditional Contract Law, buyers were requested to play a vigilant role, while accumulating by their own efforts the information needed for the clarification of consent, recent European Consumer law (1) changes the perspective, enhancing disequilibria existing between professional parties and profanes, in terms of information on characteristics of goods (2), for example, or on the manufacturing chain (3). On the other versant, contractual culture has significantly changed over the last two decades. As observable for contemporary Consumer Law, provisions protecting the consumer, in one's quality of 'vulnerable party', are multiplying, especially in the field of hyper-dangerous contracts as generators of financial debts, alimented by the amount of discrepancies present between professional and profane parties, in terms of information, finances or psychological balances of power (4). Commandments such as the solidarity between contractual parties, the moralization of contractual relations, the transparency rule or the behavioural coherence became more and more stringent (5).
Though consumption exacerbated or not, took a decisive place in all human cultures, it is only in the last decades that it began foundational for human societies, rather than being merely epiphenomenal. As underlined by scholars, in terms of availability of consumer goods, 'luxuries' came to be seen as mere 'decencies', while, later, 'decencies' came to be seen as 'necessities' (6), serving as a kind of visual proof of social or financial status or merely as psychological means of deflation for fearful conduct. The wanting and desiring of goods became, in fact, a generalised mode of being, and an inner self-satisfactory activity, on a truly mass scale. Modern hedonism may seam different from traditional hedonism, at least in terms of intensity, also changing perspectives in terms of business morals.
Despite its apparent simplicity, the concept of contractual morals is able to hide multiple meanings. First, one of the fundamental approaches of contractual morals is intuitional, being constructed on the edges of an immutable paradox: moral rules concerning commercial contractual relationships are articulated around the 'moral' indisposition experienced by contemporary European societies against cultural extravagances, false expectations and social disappointment. 'Intuitive morality' thus marks the profound post-modern hiatus between 'utility' and 'rightfulness', 'functional' and 'ethical', 'utile truth' and 'veritable truth'.
The second approach to morality of commercial contracts is a historical one, exploiting the individual's impulse of living in accordance with his or her perfectibility, despite societal discrepancies and dysfunctions (7). Beyond Kant's idealism, each human being formulates the problem of moral conduct in terms of finality: 'respecting morals', naturally, but interrogating on the purpose and, more importantly, on the means of action.
From the beginning, contractual morality--both individual and collective--delivers a set of pret a porter norms of conduct, implying a Moses' separation of waters between profit oriented commercial conduct and expected ethical behaviour. The concept of contractual morality has thus generated a fundamental dichotomy between 'judicial rule' and 'moral rule', corresponding to the classical opposition of 'judicial' or 'proven' truth and 'ethical' or 'substantial' truth. Are the two coincident, distanced or superposed, in contemporary Consumer Law? Traditionally, solving the mentioned dilemma preoccupied notorious authors, whose rhetoric discourse on Christian morality of business remains essential for posterior legal thinking (8).
In the lines below, we attempt to develop on the main features of corrective justice applied to Consumer Law, which may be stated as follows:
(i) Corrective justice theories overpass the traditional faultbased approaches to professionals' responsibility, as court's sentence is meant to 'correct' an economic or psychical harm, not to punish deviant behaviours;
(ii) Corrective justice is opposed to 'punitive justice', not only but avoidance of reference to professional's fault, but also by focus on eradication of inequitable harm, rather than on the preventive, educational or social impact of the judicial sentence;
(iii) As opposed to the 'economic' or 'utilitarian' approaches of Consumer Law, corrective justice valorises the trial result not in terms of economic distribution of resources, but in terms of complete financial satisfaction of the victim;
(iv) Corrective justice is centred on individual compensation and not on the social good provided by the judicial sentence, though not entirely ignoring the latter.
2. The moralities of duty and of aspiration in legal judgement
Moral or deontological theories on European Consumer Law differ among themselves, but they have in common the fact that they begin with the postulate of individual justice, not with that of social good, as paradigm for consumer's right to just compensation in defective contractual relationships with the professionals of industries, commerce and services. They attempt to indicate the main borderlines of the idea of corrective justice, especially as it might contrast with a more utilitarian system of legal thought and, secondly, to decouple corrective justice and punitive justice by showing that, in the field of contemporary Consumer Law, the content of corrective justice might turn on conformity rights, safety rights or on contract rights, regardless the implications of professional's fault.
The topic of corrective justice finds its debut in the postulate of the existence of a wrong committed upon the consumer's person or goods by a professional of industries, commerce or services, the 'correction' of which the legal remedies implied are meant to ensure. One of the salient aspects of professionals' liability illustrating the application of the corrective justice theory is that of manufacturer's liability for defective products, entitling the prejudiced consumer to the full covering of his or her damage (9), while dispensing the consumer from the difficult burden of proving manufacturer's fault. Thus, in terms of corrective justice, defendant's fault does not represent an essential feature of responsibility, manufacturers' liability being a concept constructed on objective, fault-distanced premises. In each case in which a defect causing infirmity, death, physical or moral harm or merely collateral economic damages to the consumer max be related to the manufacturing process, the manufacturer is called to 'correct' the wrong caused to the victim, by covering the individual financial damages, as an risk associated to the business profit-orientation, without the need of investigating the eventual fault in the presence of the manufacturing defect.
In the following, the above considerations on the concept of corrective justice are juxtaposed with the broad lines of the moralities of duty and of aspiration, as applicable to the problematic of contemporary Consumer Law. Characteristically the morality of duty postulates the existence of basic legal rules without which an ordered relationship--contractual or extra-contractual--between professionals and profane consumers is impossible. In the perimeter of Consumer Law, due to the public (or generalised) nature of the interests at stake (all the members of society being consumers, at times), it is the legislator who would be charged with the responsibility of deciding whether certain commercial conducts are illicit or honest and thus permitted (10). Shortly stated, the morality of aspiration describes individual's efforts to make the best use of his or her life, though failing to postulate what is the highest good of human existence. In terms of aspiration, the consumer is usually viewed as seeking to equalise the return for the money spent on goods and services.
As underlined by Fuller, "the morality of duty finds its closest cousin in the law, while the morality of aspiration stands in intimate kinship with aesthetics (...) the morality of aspiration starts at the top of human achievement; the morality of duty starts at the bottom." (11) In this broad sense, there is an assumed implication of reciprocity to be observed in the very notion of 'duty', as consumption contracts are bilateral by nature, both parties--consumer and professional--having reciprocal rights and duties derived from the same contractual relationship (12). For instance, from the angle of the conformity of products warranties, the consumer has the legal duty of addressing the professional vendor during a maximum period of two months since the manifestation of defectiveness, while upon the vendor's shoulders lays the burden of remediation in a 'reasonable' period of time (13), each party's failure to compel with the legal conditions or duties being a source of legal responsibility.
While the majority of rules pertaining to Consumer Law are the epiphany of the morality of duty as applied to legal judgement, there are episodic judicial norms derived from the morality of aspiration as, for instance, professional's obligation to surrogate his or her professional decision to consumer's poor choice, every time respecting client's preferences during the execution of the concluded contract (on services provided, for example) would potentially prejudice human life or physical integrity. (14) 'Loyalty, solidarity, fraternity' thus became the new slogan of contractual liability, as observed by the scholars commenting recent jurisprudence. (15)
Curiously, several areas of Consumer Law permit the simultaneous application of both theories of morals, the morality of duty and that of aspiration, such in the case of gambling contracts, for instance. Contemporary legal regulation of gambling and games represents a territory that is shared in common by the concepts of aspiration and duty. Traditionally, the Romanian Civil Code, much like its source of inspiration, the French Civil Code, distinguishes between games of skill (a) and games in which the outcome is determined by chance (16). While, in the first case, participants' duty to pay the sum at stake to the winner is compulsory, in the latter only the voluntary payment of the stake is licit, in the case of chance games the stake being not a licit object of judicial action. Consumer Law copies the major borderlines of the classic dichotomy, adding that, in the case of games and gambling with authorised organisation, it is in fact a contract of services agreed between each participant and the professional organiser. Confronted with the necessity of distinguishing between gambling for small stakes and games as innocent amusement, on one hand, and gambling in its more harmful and addictive forms, the legislator does not encourage gambling between individuals (games without a professional organiser), establishing that the stake could not be pursued in front of courts against the loser who has nor voluntarily paid the stake. From the point of view of the morality of aspiration, non sportive games are thus seen as an activity not worthy of man's capacities; for this type of morality, gambling is not seen as a violation of a duty, but as a form of human conduct unbefitting with human capacities.
There are however a few serious attempts to come to grips with the problem of defining the morality of aspirations as related to its 'poor cousin', the utilitarian vision of the legal norm, as once theorised by Jeremy Bentham. The latter's attempts of constructing a valid utilitarian matrix of legal reasoning have not being exempted from criticism, as already observed by Fuller: "Bentham's attempt to substitute for the goal of excellence that of pleasure was in effect simply to introduce into morality the same covert default that is inveterate in economics. It is impossible to maintain the assertion that all human striving is directed toward pleasure unless we are willing to expand the notion of pleasure to the point where it becomes, like utility in economics, an empty container for every kind of human want or striving." (17) A territory exists, therefore, that is shared in common by the concepts of utilitarian justice, contractual solidarity and the morality of aspiration. In the following, we will be focusing on the visibility of moral roots not only at the level of Romanian Consumer Law, but also in European Contracts Law, between the pathos of legal harmonisation and the prudence of integration.
Jamin proposes a four-sided classification of contractual solidarity reverberations over contemporary business relations (18): (a) contractual liability for unethical behaviour, (b) professionals' duty to inform and advise then profane partners, (c) manufacturers' liability for defective products, (d) creditor's duty to actively minimise potential prejudice, aside debtor's efforts. The French specialised literature remains a salient reference point for Romanian Commercial Law, due to the common Romanist roots of both legal systems; thus the French Commercial Law is seen to be the generating field of a generous, ethically preoccupied matrix of Private Law, the main colonnades of which are the transparency principle and the rational concern for the commercial partner's best interests.
3. Moral indifference and contractual individualism
As opposed to the contemporary principles of jurisprudence, contractual individualism represented a pattern of contractual behaviour centred on unemotional, rational distribution of justice between creditor and debtor, in a process in which rigid application of legal norms was vacuumed of spiritual considerations. From the utilitarian point of view, dominant at the beginning of the twenty second century, contracts judicial force was to be found in the idea of mere utility brought by the contractual arrangement on each party's interests: in terms of business relations, 'rightful behaviour' simply meant 'pragmatic behaviour'.
Often accused to be hedonistic in its most intimate nature, the utilitarian analyse of Contracts Law seemed to contradict the very idea of contractual morality, as criterion for courts of law's decisions in maters of contractual unlawful breakage or contractual misconduct. More recently, several jurisprudential trends both at national level (in legal systems of Romanic tradition, as those of France, Italy, Belgium etc.) and at the European Union's level, by adopting harmonised ethical standards for contractual behaviour between professionals and consumers (19).
Harmonization of contract law at the European Union's level valorised, though indirectly, common deontological principles applicable to commercial relations, such as the transparency principle or the loyal information principle, as shown by the Principles of European Contract elaborated by the Lando group or of the University of Trento's studies on the subject of the Common Fund of European Private Law, as well as the series of casebooks sponsored by Professor Van Gerven or the ample project of The Study Group on an European Civil Code hosted by Professor Von Bar. (20) In addition to academic effort, the European Parliament adopted several resolutions inviting to a codification of the European Private Law, while the European Commission published on July 11, 2001, a communication regarding the European Contracts Law, inviting lawyers, academia, the civil society and all other interested parties to present their opinions concerning initiatives on harmonisation of European Contracts Law. What it is hoped is the elaboration of a European Civil Code, which is at the moment an extremely delicate mission, in the presence of multiple disparities and divergent traditions in national legal systems. Judicial mechanisms, such as repression of abusive clauses (i), professional's duty to discourage consumers' unsafe conduct (ii), manufacturers' liability for damages caused by unsafe products (iii), commercial parties' duty of coherent conduct (iv) concretise moral principles once ignored by profit oriented, economic analyses of Contracts Law (21).
Nevertheless, contractual solidarity represents more an egalitarian view over contractual relations than an infinitely tolerant one; in fact, Contracts Law disposes of a small margin of evolution when it comes to responsibility for contractual compliance and sanctioning of negligent debtor, as the judicial assistance of creditor implies an intrinsic right in obtaining contractual performance or, respectively, penalties infringed upon culpable debtor, rather than the application of the Christian principle of turning the other cheek or of endless forgiveness (of the other party's "seventy times seven" mistakes). Let us note, however, that though only Christian in part (and secularised in the other), contemporary trends in contractual jurisprudence are nonetheless influenced by traditional biblical spirituality. It is true that creditor's mere appearance in a court of law in pursuit of contractual compliance contradicts the Christian commitment of repeated forgiveness; this aspect represents, however no denial for the presence of other biblical principles in the conflict solving between commercial parties, such as the transparency principle (i), the contractual fidelity principle (ii), the rule of honest counselling of profane partner (iii) or the coherence principle (iv).
Thus the solidarity vision over Contracts Law is rather preoccupied of equity than of infinite indulgence. At least for the consumerist version of contractual solidarity, it may seem difficult to identify a firm moral trend, while the judicial assistance provided by the legislator for the "vulnerable party" represented by the consumer of goods and services is materialised in technical remedies for the counterbalance of informational, economical or psychological disequilibrium between professional vendors and profanes buyers. If warnings like 'beyond consumerism, there is nothing worse left to experience' are to be trusted, the 'new religion' of the latest century seems to be that of consumption, basically a-moral, though preoccupied of equitable justice.
4. Is corrective justice the answer for contractual responsibility?
To argue the connection between moral commandments of equal chances between contractual parties and contemporary multiplication of withdrawal rights consented to consumers by national legislator, we will introduce again in the discussion the progressive formation of agreements theory. One of the major areas of Consumer Law decisively influenced by the 'corrective justice' argument is that of withdrawal or retract rights allocated to consumers in the perimeter of contracts concluded online or distance agreements, thus re-equilibrating the informational and psychological disparities existing between the professional party and the profane one at the beginning of the contractual relationship (22).
Online exchanges, by their very nature, are remote exchanges over which consumers have limited physical control and no physical access to those providing the service at the time. By the means of the legal rights of withdrawal, as those exercised in the case of distance contracts, the presumably vulnerable consumer has the possibility to renounce the effects of his or her undertaking, by sending notice within a period of not less than seven days from product receipt, in accordance with the procedure laid down by national law, the giving of the notice having the effect of releasing the consumer from any obligations under the cancelled contract. Retract of consent remains the cornerstone of consumers' protection at the conclusion of contracts producing, in the legislators' vision, dangerous or simply ample patrimonial effects. The legal rights of retract have the judicial nature of discretionary rights, by which we understand the fact that the reasons for the right exercise is not subjected to the judgment of courts, as the consumer is bind by no duty to motivate his/her retract. Furthermore, the non censurable exercise of consumers' right to retract the prior assent does not depend upon any action or reaction of the professional party to the contract and the notification of the professional upon the exercise of the unilateral retract right exonerates the consumer of any contractual obligation the denounced contract may have primarily generated, with the only exception of the consumer's duty to return the product to the vendor, subsequent to contract dissolution (23).
The contractual formation process implies, in the mentioned cases, that the original consent provided by the consumer is insufficient for the contract to be legally binding, the legislator presuming the insufficiency of information during pre-contractual relations, as the consumer needs a supplementary period if time in order to clearly evaluate the risks and the opportunities attached to the respective contract. Accordingly, the consumer's prior assent needs to be doubled by a secondary (final) consent to the same convention, which is to be expressed during the period of 7, 10 or 14 labouring days since the provisional contracts had been signed. Only the secondary assent is able to finalize the bargain formation, as a confirmatory judicial acceptance act needs to take place in order for the bargain to become legally binding for the consumer, by non-using, upon his/her will, the retract discretionary right allocated by law. The retract right implies for the consumer a judicial power of control over the formation of the contract, the progressive character of which represents the most important feature.
From another perspective, the legal faculties of contract breakage have as an objective the retardation of the agreement making process, representing cases of progressive formation of consent. The proposed theory surpasses the traditional criteria of establishing the withdrawal rights main sphere of incidence, implying an analysis of the opposability between the restrictive thesis and the extensive thesis regarding the withdrawal rights main sphere of incidence.
Simply stated, the test is whether, if the judicial instrument of the retract rights is used by the legislator to temporize the formation of certain commercial contracts, considered to present a exceptional amount of economic risks for the consumer, as a contractual party, the excessive debt will be avoided to a substantial amount or, on the contrary, the lack of judicial education and of information would retain consumers from exercising their discretionary legal rights. A corollary to the matter mentioned above is that, since the professionals vendors are compelled to respect the discretionary character of the legal rights of retract, the legislator should be more preoccupied to elaborate future concrete norms describing the sanctions enforceable in case of rights violations, as contemporary legal texts do not always sufficiently stretch the legal powers allocated to the National Authority for the Protection of Consumers representatives and does not offer details on the concrete role allocated to the consumers' organizations, regarding the defence of individual or collective interests of their members.
Without going into detail, we only wish to point to the fact that the intensity of this already installed competition between 'corrective justice' and 'punitive justice' depends on whether legislator's first choice, with regard to a particular legal norm, is to banish certain business practices in the relationship between professionals and profane consumers, thus setting the grounds for a more educative and preventive judicial technique and favouring punitive justice or it is that of simply re-equilibrating the economic balance between the two parties of a commercial contract, thus opting for corrective justice. For instance, in the case of illicit comparative advertising or in that of misleading advertising (24), it is punitive justice that prevails, implying as necessary the proof of the advertising beneficiary's or author's fault and being centred on the punishment of illicit or manipulating commercial messages. As emphasized by scholars with regard to legal repression of misleading advertising, "in the case of research on the consumer's interests, a manipulation check becomes even more important because critical public policy and consumer protection implications may emanate from the results of the research, and lack of a manipulation and/or a confound check could result in policy decisions based on invalid or inaccurate results. For example, in studying the perceptions of potentially misleading advertisements, two different messages may be developed for testing. The research may be assessing the level of potential financial or other harm that might result from consumer processing of one or both of these messages. In the design, it is important for the advertisements to be identical, with the exception of the specific "misleading" variable being manipulated." (25)
In other words, the balance between corrective justice, directed at the re-equilibrating the two patrimonies of professional and consumer, and punitive justice, oriented towards the repression of fault does not cease to aliment the legal thought, as observable for various branches of Consumer Law.
5. Corrective justice vs. utilitarian approaches of justice
The following paragraphs try to contrast corrective justice approaches to European Consumer Law issues with economic or utilitarian approaches. Indeed, the apparently irreconcilable opposition between corrective justice and utilitarian approaches of Consumer Law is only correct at certain specific levels of analysis. The main point shown by both these theories of Consumer Law is that professional's fault is not essential to corrective justice regime, nor is it to utilitarian or economic justice.
As reminded above, recent developments of Consumer Law propose a more delicate and attentive perspective on consumers' contractual position, professionals being called to favour transparency, loyalty and honesty in the relationship with profane buyers, with the risk of paying contractual damages for not compelling with the mentioned duties. The contractual solidarity thus offers the matrix of a virtuous and generous Contracts Law, a sort of judicial temple the main colonnades of which are the duty of mutual assistance between the contractual parties and the favouring of partner's interests. Applied at first to civil liability for contractual damages, the contractual solidarity ended its evolution by being enforced upon professionals of industries, commerce and services in terms of specific obligations, such as the duty of information and consult, the duty of safety and creditor's duty to actively minimize the potential prejudice resulting from debtor's failure to accomplish the contractual obligations.
Contemporary contractual solidarity finds its roots in the utilitarian analyses of law, as economic-impregnated visions of synthesis between the antagonistic interests of the contractual parties (26), reunited on the field of altruistic and tolerant patience. Paradoxically, the original utilitarian theories of law, as applicable in traditional common law systems, had few of the amounts of beatitude and indulgence that its 'product', the continental contractual solidarity preaches, being more likely the source of unemotional, calculated business conduct. The criterion used to distinguish judicially enforceable contracts from merely principia agreements, and the non compulsory from imperative is the economic one: the just is the utile, in its pragmatic appearance.
Let us exemplify the antagonistic results of the application of the two systems of compensation in the field of manufacturers' responsibility for physical damages caused by defective or unsafe products. By the means of 'utilitarian justice', the professional defendant may be acquitted on the grounds of the social interest brought by the promoted technical innovation, even if in certain cases the consume of the product caused illness, injuries or the death of human beings, or in terms of the 'risk of development', the manufacturer may be exonerated by arguing that the level of scientific development at the time of the product launch on the market did not allow the manufacturer to discover the damaging defect, thus eventually testing its innovation on consumers. On the contrary, in terms of 'corrective justice, the fact that the launch on the market of an innovative product may represent a social progress represents no excuse for the eventual existence of an unreasonable risk associated to consume of that product and therefore justifies consumer's request for compensation, despite the potential progress brought for the society by that technical innovation; thus, 'corrective justice' postulates that an injured consumer should be completely and equitably financially compensated by the manufacturer and that the victim should not be forced to give up his or her claim for the sake of common good or societal welfare.
As stated above with regard to Consumer Law, corrective justice is preoccupied with the re-establishment of the equilibrium between the patrimonies of the two parties, the professional manufacturer, vendor or service provider and the profane consumer, without conditioning consumer's compensation by the proof of defendant's fault, usually difficult to reconstitute by the consumer, the only conditions of compensation remaining those of the proof on defect existence, the prejudice and on the direct relationship between the registered prejudice and professional's misconduct, in response to consumer's presumed vulnerability: "Consumer vulnerability is a state of powerlessness that arises from an imbalance in marketplace interactions or from the consumption of marketing messages and products. It occurs when control is not in an individual's hands, creating a dependence on external factors (e.g., marketers) to create fairness in the marketplace. The actual vulnerability arises from the interaction of individual states, individual characteristics, and external conditions within a context where consumption goals may be hindered and the experience affects personal and social perceptions of self." (27)
Other taxonomies were created in order to make sense of various theoretical developments in the legal application of moralities. Dobbs and Hayden (28) talk about three strategies of dealing with the diversity of moral approaches in legal thinking:
(1) the corrective justice strategy mainly employed in Consumer Law, which focuses on emphasizing the need for equilibrating consumer's patrimony, by condemning the professional to the payment of damages in order to fully cover consumer's prejudice, disregarding apparent differences in terms of defendant' fault, as long as the plaintiff manages to prove a manufacturing, design or informational defect, a prejudice and a direct relationship between professional's activity and the producing of prejudice;
(2) the punitive strategies that focus on ranking existing differences in stages of moral development and on the preventive and educational purpose of the judicial sentence, thus conditioning defendant's condemn on the proof of the latter's fault;
(3) the moderate or utilitarian strategies proposed in the economic analyses of law, that accept the plurality of views on morality and focus on the economic impact, as well as on the social reverberations of the punishment (as for instance, in the case of condemning the author of the misleading advertising to the payment of a certain percent of its business profit and to the publishing of the official judgment, thus affecting its commercial reputation).
To state the standard of duty for professionals of industries, commerce and services is first to decide whether the safety standard has been breached in the relationship with the consumer, a legal territory on which unreasonable risk becomes the central topic. What makes a risk unreasonable? Discussion can explore the question whether a risk-utility balance applied to the damaging product is a desirable way of judging professionals' responsibility than the criterion of manufacturer's fault almost impossible for the consumer to prove, as the latter did not witness the manufacturing process.
From the angle of the Romanian Consumer Law, in cases when the defective product merely damaged itself, the plaintiff is not allowed to seek damage relief on the grounds of the manufacturers' responsibility for consume safety (29), the only option remaining invoking vendor's warranty for products conformity (30). Adequate protection of the consumer requires compensation for death and personal injury, as well as compensation for damage to property; nevertheless, whereas the latter are limited to goods for private use or consumption and are subject to a deduction of a lower threshold of a fixed amount of 500 euros, in order to avoid litigation in an excessive number of cases, the European Directive provisions do not prejudice compensation for pain and suffering and other non-material damages payable, where appropriate, under the law applicable to the case. What is 'defective', in terms of manufacturers' liability towards consumers? Legal theory and practice on manufactures' responsibility retained that a product is 'defective' when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including the presentation of the product, the use to which it could reasonably be expected that the product would be put and the time when the product was put into circulation; however, a product is not considered defective for the sole reason that a better product is subsequently put into circulation.
Let us note that manufacturing defects describe an accidental flaw in the manufacturing process, usually non perceivable by manufacturer's representatives (e.g. engine defects, engine imperfections, accidental misconstruction of one component). Manufacturing flaws are easily measured against like products (safe products, manufactured as intended); in other words, in these cases, aberrations of manufacturing may be tested against the norm to determine whether a product is defective.
As to design defects, courts and authors have struggled with the concept of what constitutes defective design of a product, as in opposition to manufacturing products, where a safety standard already exists (represented by non defective products, manufactured as intended on a regular basis), design defects do not benefit form an objective / alternative standard. Originality or unique character of design usually complicates analyzes,
as the courts weigh non homogenous factors, such as product functions, aesthetical aspects or presence of alternative design on the market. In addition, it is in the field of defective design that manufacturers may be exonerated on the basis of the 'risk of development' concept, as the manufacturer may free himself from liability if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.
For instance, in the field of the manufacturers' responsibility for the prejudice caused by the consume of a pharmaceutical product presenting a manufacturing defect, the product concerned may be declared 'unsafe for human consume' simply if the risks resulting form its utilization are excessive, even if mentioned on the medicine prospect, only medicine representing the sole cure for a serious disease being excepted form the application of the mentioned rule. Additionally, it should be underlined that, in the field of pharmaceutical products safety, the 'unsafe for consume' character may result both from the lack of information offered to consumers by the manufacturer or the distributor, on the potential risks associated to consume and from the disproportionate character of the implied risks, in comparison with the benefits attributed to the consume of medical drug (31).
At least originally, the system of manufacturers' liability for damages caused by unsafe or defective products thus has its roots in the theories of corrective justice. Ultimately, the moral content of the approach on manufacturers' responsibility is derived from the idea that an injured consumer should be completely and equitably financially compensated by the manufacturer and that the victim should not be forced to give up his or her claim for the common good. To this respect, all utilitarian arguments are abandoned: the fact that the launch on the market of an innovative product may represent a social progress does not excuse the eventual existence of an unreasonable risk associated to consume of that product and therefore justifies consumer's request for compensation, despite the potential progress brought for the society by that technical innovation. As reminded above, corrective justice--as illustrated by the case of manufacturers' liability for defective products--focuses on the individual need for equitable compensation associated to physical harm caused by the consume (32), all social or collective interests becoming marginal.
6. Conclusive remarks
Moral theories on European Consumer Law share the fact that they begin with the postulate of individual justice, instead of social good, as paradigm for consumer's right to just compensation in defective contractual relationships with the professionals of industries, commerce and services. These theories attempt to indicate the main borderlines for the idea of corrective justice, especially as it might contrast with a more utilitarian system of legal thought and, secondly, to decouple corrective justice and punitive justice by showing that, in the field of contemporary Consumer Law, the content of corrective justice might turn on conformity rights, safety rights or on contract rights, regardless the implications of professional's fault. Though still pre-eminent in areas such the regulation of comparative advertising and misleading advertising messages, 'punitive justice' constantly cedes the place to 'corrective justice' in other fields of European Consumer Law, as illustrated by the manufacturers' liability for defective products or the imperative conformity warranties.
As opposed to the 'economic' or 'utilitarian' approaches of European Consumer Law, corrective justice valorises the trial result not in terms of economic distribution of resources, but in terms of complete satisfaction of the victim, from the angle of recovery damages; as proved by the system of manufacturers' liability for damages caused by unsafe or defective products, the importance of the individual need for equitable compensation associated to physical harm caused by the consume surpasses that of social or collective interests in technical or economic progress. Corrective justice also contrast with 'punitive justice', not only but avoidance of reference to professional's fault, but also by focus on eradication of inequitable harm, rather than on the preventive, educational or social impact of the judicial sentence. Also in terms of corrective justice, defendant's fault does not represent an essential feature of responsibility, professionals' liability being usually a concept constructed on objective, fault-distanced premises. Far from being a mere legal 'extravagance', the corrective justice, at least in terms of European Consumer Law, allows national legislator and courts to close the door on any less tangible rationale for handling injuries resulted by consume, admitting consumers' intrinsic vulnerability and their need for equitable chances.
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16. Jamin, Christophe (2001), "Plaidoyer pour le solidarisme contractual", in Mazeaud, Denis (ed.), Le contrat au debut du XXIe siecle. Etudes offertes a Jacques Ghestin, Paris: L.G.D.J., 441-449.
17. de Matos, Anne-Marie (2001), Les contrats transfrontaliers conclus par les consommateurs au sein de l'Union Europeenne, Marseille: Presses Universitaires d'Aix-Marseille.
18. Mazeaud, Denis (1999), "Loyaute, solidarite, fraternite: la nouvelle devise contractuelle?", in Mazeaud, Denis (ed.), L'avenir du droit. Melanges en hommage a Francois Terre. Paris: Dalloz, Presses Universitaires de France, 603-612.
19. Paisant, Gilles (2007), "Les clauses abusives dans les contrats de vente de vehicules automobiles neufs" in La Semaine juridique, no. 14, 29-33.
20. Picod, Yves; Davo, Helene (2005), Droit de la consommation, Paris: Armand Colin.
21. Piedelievre, Stephane (2008), Droit de la consommation, Paris: Economica.
22. Poillot, Eugene (2006), Droit europEen de la consommation et uniformisation du droit des contrats, Paris: L.G.D.J.
23. Pop, Liviu (2006), Tratat de drept civil. Obligatiile, Regimul juridic general sau Fiinta obligatiilor civile, Bucharest: C.H. Beck.
24. Preston, I. L. (2010), "Interaction of Law and Ethics in Matters of Advertisers' Responsibility for Protecting Consumers" in Journal of Consumer Affairs vol. 44, no. 1, 259-264.
25. Raymond, Guy (2008), Droit de la consommation, Paris: Litec.
26. Ripert, Georges (1949), La regle morale dans les obligations civiles, Paris: L.G.D.J.
27. Scoditti, Enrico (2006), "Regole di efficacia e principio di correttezza nei contratti del consumatore" in Rivista di diritto civile, no. 1, 119-126.
28. Serinet, Yves Marie (2007), "La descendance ambigue de Chronopost: l'arret Faurecia" in La Semaine juridique, no. 15, 10 063.
29. Schwarty, Victor, Kelly Kathryn, Partlett, David (2000), Torts, New York: New York Foundation Press.
30. Taormina, Georges (2004), Theorie et pratique du droit de la consommation, Aix-en-Provence: Librairie de l'Universite d'Aix-en-Provence.
31. le Tourneau, Phillippe; Cadiet, Loic (2000), Droit de la responsabilite et des contrats, Paris: Dalloz.
32. Vasilescu, Paul (2006), "Un chip al postmodernismului recent: dreptul consumatorului", in Vasilescu, Paul (ed.), Consumerismul contractual. Repere pentru o teorie generala a contractelor de consum, Cluj-Napoca: Sfera Juridica, 5-62.
33. Vasilescu, Paul (2012), Drept civil. Obligatii, Bucharest: Hamangiu.
(1) The references are made with respect to contemporary trends in European Consumer Law, though parts of the present analyse are allocated to the discussion of the Romanian Consumer regulations. See, for important discussions, Walter Doralt, "The Optional European Contract Law and Why Success or Failure May Depend on Scope Rather than Substance" in Revue des Contrats no. 4, 2011, p. 1321-1348; E. H. Hondius, "The Proposal for a European Directive on Consumer Rights: a Step Forward" in European Review of Private Law no. 1, 2010, p. 108-116.
(2) The recent Consumer Rights Directive 2011/83/EU published in the EU's Official Journal of 24 November 2011, includes an express provision that EU Member States will adopt and publish, by 13 December 2013, the laws, regulations and administrative provisions necessary to comply with this Directive. Under the new Directive, all EU consumers will generally be able to return products bought online within a fortnight of receiving them, in order to receive a full refund. While current laws give consumers the right to return distance-sold goods within seven days, Article 9 of the Consumer Rights Directive 2011/83/EU establishes that the consumer will have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than some supplementary delivery costs and the cost of returning the goods, unless the trader has agreed to bear them or the trader failed to inform the consumer that the consumer has to bear them.
Customer-specified or personalised products are among the goods to which the new right of return will not apply. Under the new Directive, the right of withdrawal will neither apply to goods made to the consumer's specifications or which are clearly personalised such as tailor-made curtains, nor to the supply of fuel, for example, which is a good, by nature inseparably mixed with other items after delivery. Other contracts excluded from the incidence of the withdrawal rights are those refering to the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery; the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications and contracts concluded at a public auction. Current legislation also excludes the mentioned contracts from the domain of the consumer's right to revoke his or her consent. The traders will have to issue online consumers with a 'model withdrawal form' set out in Annex I(B) of the Directive, that could be used to return the product. Other information traders must provide consumers includes details of the main characteristics of the products and services being sold, contact information such as name and geographical address of the business and the total price of what is being sold, including extra fees and charges.
(3) See, for a good account of the arguments of that debate, Jean Carbonnier, Flexible droit, Paris: L.G.D.J, 2001, p. 122.
(4) For further arguments, see Paul Vasilescu, "Un chip al postmodernismului recent: dreptul consumatorului", in Paul Vasilescu (ed.), Consumerismul contractual. Repere pentru o teorie generala a contractelor de consum, Cluj-Napoca: Sfera Juridica, 2006, p. 5-62.
(5) See G. Brunaux, Le contrat a distance au XXIe siecle, Paris: L.G.D.J, 2010, p. 122-126.
(6) Peter Corrigan, The Sociology of Consumption, London: SAGE Publications, 1997, p. 2.
(7) For the historical approach to the contractual deontology, see Eugeniu Sperantia, "Droit laique, droit transcendant et obligativite" in Analele Facultatii de Drept din Cluj no. 3, 1942, p. 91-103.
(8) See Georges Ripert, La regle morale dans les obligations civiles, Paris: L.G.D.J., 1949, p. 58-67. For a recent discussion, see I. L. Preston, "Interaction of Law and Ethics in Matters of Advertisers' Responsibility for Protecting Consumers" in Journal of Consumer Affairs vol. 44, no. 1, 2010, p. 259-264.
(9) It should be noted that, in terms of manufacturers' liability for physical injury and economic harms caused to consumers by defective products, regulated at the European Union's level by Directive 85/374/EEC of the European Parliament and of the Council of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, modified and completed by Directive 1999/34/EC of the European Parliament and of the Council and transposed in the Romanian legal system by Law no. 240/2004 on manufacturers' responsibility for damages generated by defective products, legal research pertaining to the use of unsafe products typically addresses the differences between 'substantial defects' (defects due to the manufacturing process or to the product conception) and 'information defects' (consumers' mislead, intended or negligent, by the use of incomplete information). See, for further comments, Georges Taormina, ThEorie et pratique du droit de la consummation, Aix-en-Provence: Librairie de l'UniversitE d'Aix-en-Provence, 2004, p. 212-228.
(10) See, for instance, the text of Romanian Law no. 363/2007 on repressing illegal commercial practices in contracts concluded by consumers and the harmonization of national law and the European Communities Law in the field of consumers' protection, as well as the Law no. 296/2004 (Consumer Code).
(11) L. L. Fuller, The Morality of Law, London: Yale University Press, 1969, p. 15.
(12) Liviu Pop, Tratat de drept civil. Obligatiile, Regimul juridic general sau Fiinta obligatiilor civile, Bucharest: C.H. Beck, 2006, pp. 214-215.
(13) As stated by the Romanian Law no. 449/2003 on commercialization of goods and associated warranties.
(14) It is, for instance, the case of engineering services that should have been refused to client due to poor technical conditions, in order to avoid the crumbling of the building and thus the endanger of human lives. See, for the French jurisprudence on the mentioned principle, as source of inspiration for the Romanian courts, Phillipe le Tourneau, Loic Cadiet, Droit de la responsabilitE et des contrats, Paris: Dalloz, 2000, p. 1245. The same reasoning may be reiterated for medical interventions requested by the consumer, seen as unjustifiably dangerous by the professional provider of the medical services.
(15) See, for further comments, Denis Mazeaud, "Loyaute, solidarite, fraternite: la nouvelle devise contractuelle?", in Denis Mazeaud (ed.), L'avenir du droit. Melanges en hommage a Francois Terre. Paris: Dalloz, Presses Universitaires de France, 1999, pp. 603-612.
(16) See articles 1636-1638 of the Romanian Civil Code, as well as Governmental Ordinance no. 99/2000, with regard to the advertising lotteries.
(17) L. L. Fuller, op. cit., p. 18.
(18) Christophe Jamin, "Plaidoyer pour le solidarisme contractual", in Denis Mazeaud (ed.), Le contrat au debut du XXIe siecle. Etudes offertes a Jacques Ghestin, Paris: L.G.D.J., 2001, pp. 441-449.
(19) As materialised, for instance, in the text of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts and Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising.
(20) D. Fasquelle, P. Meunier, Le droit communautaire de la consommation. Bilan et perspectives, Paris: La documentation francaise, 2002, p. 109.
(21) Eugene Poillot, Droit europEen de la consommation et uniformisation du droit des contrats, Paris: L.G.D.J, 2006, pp. 87-89.
(22) It is also the case of off-premises contracts.
(23) The legislator presumes the insufficiency of information during pre-contractual relations, as the consumer needs a supplementary period if time in order to clearly evaluate the risks and the opportunities attached to the respective contract, as in the case of off-premises contracts, contracts agreed at distance, including electronic bargains and credits offered to consumers. Accordingly, the consumer's prior assent needs to be doubled by a secondary consent to the same convention, which is to be expressed during the period of 7, 10 or 14 labouring days since the provisional contracts had been signed. In our opinion, only the secondary assent is able to finalize the bargain formation, as the confirmatory judicial acceptance act needs to take place in order for the bargain to become legally binding for the consumer, by non-using, upon his/her will, the discretionary right of contract cancelling allocated by law. Notification of the professional upon the exercise of the unilateral retract right exonerates the consumer of any contractual obligation the denounced contract may have primarily generated, with the only exception of the consumer's duty to return the product to the vendor, subsequent to contract dissolution. Omission of professional vendor to inform the consumer on the existence of the legal right of retract is sanctioned by automatic extension of the legal period of retract to 60 labouring days, according to article 10 of Romanian Governmental Ordinance no. 106/1999 on off-premises contracts, modified.
(24) As regulated, for instance, in Romanian Consumer Law by Law no. 148/2000 on advertising and by Law no. 158/2008 on misleading advertising and comparative advertising.
(25) M. B. Royne, "Cautions and Concerns in Experimental Research on the Consumer Interest", in Journal of Consumer Affairs no. 3, 2008, p. 480.
(26) See Cristiana Dana Enache, Clauzele abuzive in contractele incheiate intre profesionisti si consumatori, Bucharest: Hamangiu, 2012, pp. 185-240, for a presentation of relevant jurisprudence on unfair contractual terms.
(27) D. E. Garrett, P. G. Toumanoff, "Are Consumers Disadvantaged or Vulnerable? An Examination of Consumer Complaints to the Better Business Bureau", in Journal of Consumer Affairs no. 1, 2010, p. 3.
(28) See Victor Schwarty, Kathryn Kelly, David Partlett, Torts, New York: New York Foundation Press, 2000, p. 899.
(29) In terms of Law no. 240/2004 on manufacturers' responsibility for damages generated by defective products, modified. Please note that, under the conditions of manufacturer's liability towards consumers, the imputable damage only includes: (a) the damage caused by death or by personal injuries; (b) the damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 euros, provided that the item of property is of a type ordinarily intended for private use or consumption and was used by the injured person mainly for his own private use or consumption.
(30) As regulated by Romanian Law no. 449/2003 on sales of products and associated warranties; also see the text of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts.
(31) As regulated by Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use.
(32) Let us note, however, that most of the compensations allocated to the injured consumer are obtained in practice from the professional's fund of insurance (as those for certain types of malpractice, for instance). See Rodica Diana Apan, Protectia juridica a consumatorilor. Creditul destinat consumului si domeniile conexe, Cluj-Napoca: Sfera juridica, 2007, p. 132; StEphane Piedelievre, Droit de la consommation, Paris: Economica, 2008, p. 34-57.
* This research was supported by the National Authority for Scientific Research CNCSIS UEFISCSU, through project PN II-PD-RU 396/2010. E-mail:.
** Juanita Goicovici, PhD, is Lecturer at the Babes-Bolyai University of Cluj-Napoca, Faculty of Law, Department of Private Law, being in charge of the Consumer Law course and of the course 'Contracts concluded by consumers', held for the Master in Private Law Program.
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