CONSUMER LAW AND POLICY:TEXT AND MATERIALS ON REGULATING CONSUMER MARKETS THIRD EDITIONPDF电子书下载

1 SETTING THE CONTEXT 1

1. The development of consumer law and policy 1

2. Consumer law, neo-liberalism and the social market 7

3. Consumer influence in contemporary society: the politics of consumer protection 14

3.1 Explaining the existence of patterns of consumer regulation 15

4. Markets, consumption and ideology 24

5. The regional and global dimension 29

5.1 European consumer law and policy: establishing the ground rules of the internal market 29

5.2 Conceptions of the consumer in EU law 33

5.3 The competence of the EU in consumer policy 34

5.4 The move to maximal harmonisation; framework directives 36

6. International consumer law 38

2RATIONALES FOR CONSUMER LAW AND POLICY 41

1. Neo-classical rationales: market failure 42

1.1 Assumptions of market failure analysis 47

2. Information failures in consumer markets 49

2.1 Market structure and information failures 54

3. The new policy paradigm: behavioural economics 56

3.1 Hyperbolic discounting 57

3.2 Over-optimism 58

3.3 Framing effects and status quo bias 58

3.4 Availability and anchoring 59

3.5 Information overload 59

3.6 Fairness 60

3.7 Emotions and the economy 60

3.8 Behavioural economics and regulators 61

3.9 Implications of behavioural economics for consumer law and policy 61

4. Competition, information failures, bundling and switching costs 67

5. Equity 70

5.1 Assuring consumer access to markets at reasonable prices: social exclusion and consumer markets 73

5.2 Consumer entitlements: a rights approach? 77

5.3 Community values 79

6. Paternalism 81

7. Sustainable consumption: ethical and fair trade 82

3FRAMEWORKS AND FORMS OF REGULATION OF CONSUMER MARKETS 85

1. The new regulation 85

2. Regulation and governance 90

2.1 Self-regulation, guidance, best practices and benchmarking 92

2.2 Market norms and default rules 93

2.3 The consumer as a regulatory subject 95

2.4 Transnational consumer regulation 96

3. Techniques of regulation 98

3.1 Information remedies 98

3.2 Reducing enforcement costs 103

3.3 Encouraging pre-commitment strategies 103

3.4 Standards 104

3.5 Individualised screening: licensing 105

3.6 Price controls 105

4. Competition policy, economic regulation and consumer policy 105

5. Adjudication and the regulatory role of the courts 105

5.1 The balance of public and private enforcement of consumer law 108

5.2 Public interest groups and agenda setting: supercomplaints 109

6. Transnational regulation, the Internet and cross-border transactions 113

6.1 Establishing the ground rule of consumer Internet transactions 116

6.2 Formalities, information disclosure, cooling off and Internet consumer contracts 117

6.2 Consumer redress and the Internet 119

6.3 Enhancing reputational devices: trustmarks and reputation intermediaries 122

6.4 Online dispute resolution 124

4 THE REGULATION OF DECEPTIVE AND UNFAIR COMMERCIAL PRACTICES 127

1. Constituting the market 127

1.1 The role of advertising 127

1.2 Commercial speech: a constitutional right to advertise? 130

2. The common law ground rules 136

2.1 Puffing and its limits 137

2.2 Theories of recovery for manufacturers’ advertising claims 139

3. Unfair Commercial Practices Regulation 151

3.1 Institutional framework of trade practices regulation 154

4. A new start? The EU Unfair Commercial Practices Directive and its implementation 156

4.1 The rationale for the UCPD 156

4.2 Maximal harmonisation and the UCPD 160

4.3 The scope of the Directive 163

4.4 The role of the general clause 164

5. Implementation: the CPUT Regulations 2008 165

5.1 Interpreting the regulations 166

5.2 The standard of protection: the average consumer and the transactional decision test under the UCPD 166

6. Judicial interpretation of the average consumer test 169

6.1 The vulnerable consumer 174

6.2 Material omissions 177

6.3 What is at stake in the average consumer test? A comparative note 178

6.4 Disclaimers, ‘car clocking’ and the CPUT regulations 181

6.5 Material omissions and invitations to purchase 183

7. Misleading pricing: the search for market fairness 188

7.1 Why regulate misleading price claims? 188

7.2 The regulation of hi-lo pricing 191

8. Aggressive commercial practices 195

9. Prohibited practices: Schedule 1 198

10. ‘Cooling-off’ periods in consumer transactions: a right to withdraw in consumer contracts? 199

10.1 Doorstep selling 200

10.2 Distance selling and cooling-off 206

10.3 Timeshares and cooling-off 208

10.4 Cooling-off periods and stimulating competitive markets:extended warranties 208

10.5 Rethinking cooling-off periods: a right to withdraw? 209

5IMPLEMENTATION AND ENFORCEMENT OF UNFAIR COMMERCIAL PRACTICES LAW 213

1. The structure of public enforcement of unfair commercial practices law in the UK 214

2. Models of enforcement 218

3. Methods of public enforcement 220

3.1 The old workhorse: the regulatory offence 221

4. Administrative remedies 242

4.1 Enforcement orders 243

4.2 Administrative penalties 252

4.3 The enforceable undertaking 253

4.4 Adverse publicity: naming and shaming 254

4.5 Public power to obtain compensation and redress 255

4.6 Restorative justice orders 256

5. The balance of public and private enforcement of unfair trading law 256

6. Class and public-interest actions 262

6.1 Canadian experience of consumer class actions 271

7. The role of self-regulatory organisations in enforcing unfair commercial practices law 274

7.1 Mandated self-regulation and co-regulation: the Advertising Standards Authority 276

7.2 Codes of practice 288

8. Cross-border enforcement of unfair commercial practices law 292

6 STANDARD FORM CONSUMER CONTRACTS AND THE SEARCH FOR FAIRNESS 297

1. Rationales for regulation 297

1.1 Inequality of bargaining power 297

1.2 Neo-classical economic analysis and standard-form contracts 300

1.3 Behavioural economics and standard-form contracts 302

1.4 Understanding the role of standard-form contracts in corporate relationships with consumers 303

2. Regulatory techniques 305

2.1 Judicial control 305

3. The OFT: developing an approach to unfair contract terms regulation:negotiation, litigation and ‘high-impact cases’ 317

3.1 Phase 1: change through negotiation 320

3.2 Assessing the initial performance of the OFT 326

4. A new approach? Greater use of test and high-impact cases 330

4.1 Threatening action: credit card penalty charges 339

4.2 Bank charges 340

4.3 The OFT as bargaining agent for consumers 357

7 REGULATION OF CONSUMER CREDIT MARKETS 361

1. The role of consumer credit in the economy 362

1.1 Consumer credit in the UK 364

1.2 Sub-prime and high-cost credit 367

1.3 Financial exclusion 373

2. The costs and benefits of consumer credit 375

3. Rationales for regulation of consumer credit markets 376

4. The Consumer Credit Act 1974 380

4.1 Institutional structure of credit regulation 382

5. Ex ante regulation: a safety model for credit regulation? 385

5.1 Ex ante regulation: the evolving experience of credit licensing 386

5.2 FSA approaches to regulation: the ‘treating customers fairly’initiative 393

6. Empowering the demand side of the market? Information remedies 410

6.1 Required disclosures: truth in lending 410

6.2 Post-contractual information 416

6.3 Formalities and the sanction of nullity: attacking agreements through heightened formalism 418

6.4 Early settlement and promoting competition 419

6.5 Reducing creditor costs: credit information, credit scoring and credit bureaux 420

7. Responsibilising the consumer: financial literacy 424

8. Responsible lending 426

9. Regulating contract terms and credit relationships: relational contracting 432

9.1 Controlling discretion and reacting to changed circumstance 432

10. Regulation of the price of credit: usury 437

10.1 Judicial control of credit terms: unfair credit relationships 440

11. Ombudsmen: The Financial Ombudsman Service 448

11.1 Ombudsmen, the rule of law and norm development 454

12. Over-indebtedness and regulation of credit default 467

12.1 Creditors’ remedies and consumer protection 469

12.2 The regulation of default 470

12.3 Controls on repossession 481

13. Restructuring and writing down consumer debts 490

13.1 Individual voluntary arrangements 491

13.2 Administration orders 492

13.3 Bankruptcy as a consumer remedy 493

13.4 The role of bankruptcy in contemporary society 495

14. Institutional alternatives: expanding choice and access to affordable credit 498

14.1 Credit unions 498

14.2 The Social Fund 501

14.3 Harnessing the resources of mainstream finance 503

8 QUALITY REGULATION AND POST- PURCHASE QUALITY PROBLEMS 505

1. Sources of quality problems: an economic perspective 505

1.1 The repeat-purchase mechanism, reputation and product quality 507

1.2 Complaints, legal rights and problem solving 508

2. Consumer product warranties 512

3. Private liability law 517

3.1 Correspondence with description 519

3.2 Satisfactory quality and fitness for particular purpose 521

3.3 Judicial standards in relation to high-value consumer products—automobiles and yachts 532

3.4 The structure of consumer remedies: designed for adjudication or bargaining? 542

3.5 Rejection rights outside the Sale of Goods Act 547

3.6 Manufacturers’ legal liability to consumers for economic loss 549

3.7 Reducing consumer costs in quality disputes? Lemon laws 553

4. Harnessing market gate-keepers for redress: connected-lenders’ liability 553

5. The regulation of product market quality: the case of used cars 563

6. Services 566

6.1 Civil liability and service quality 567

6.2 Service performance and consumer bargaining power 571

6.3 Consumer damages 573

7. Car servicing 576

9 PRODUCT SAFETY REGULATION 581

1. Rationales and objectives: defining an acceptable social risk 582

1.1 Identification of product risks 588

2. The development of consumer product safety regulation in the United Kingdom 588

2.1 Product safety standards 590

3. Consumer safety and transnational market governance within the EU 593

3.1 The EU ‘new approach’ to standards and consumer product safety standardisation: free movement in a safe market 593

3.2 Representation of consumer interests on standardisation bodies 600

4. Post-marketing surveillance and the enforcement of product safety standards 605

5. Private liability law: product liability 609

5.1 Liability under the Consumer Protection Act 1987 610

References 627

Index 657