ESSAYS IN HONOR OF HUGH BEALE

Consumer law is a strange area of law: it has direct implications for those who are directly affected by the law,
both consumers and traders. This complexity has been exacerbated by the adoption of consumer law in
response to specific problems, combined with a similarly piecemeal evolution of consumer law at the European
level. There have been numerous initiatives to reform and modernize consumer law both at the domestic and
European levels.

Major questions about reform of consumer law: Why the reform of consumer law has become a necessity,
what the problems were and how reform could best have been achieved.

OBJECTIVES OF LAW REFORM

Why to take law reform?

-To change the law in a particular area.

-To simplify an area of law which has become too complex or where there is such an amount of conflicting
case-law that it is difficult to work out exactly what the legal position is.

The objectives to be pursued, as well as the possible approaches to give effect to these objectives, are diverse:

Simplification: about “substantive” simplification, in which the only the substance of the legal rules is left to
remove complexities which have become otiose. There have been several reasons why a rule has been drafted
in a certain way; maybe at the time it was drafted it was practically necessary to follow certain steps, but since
then, technological advances such as the possibility to use electronic means make it possible to have a simpler
procedure in place. A further reason might be that legislation has repeatedly been amended and that as a
result, what was once a straightforward procedure has become too complicated.

About the way in which the law is presented, it might be unnecessary complexly presented. Thus, a statute
may be drafted in such a way that it becomes quite easy to identify what exactly the law requires in a particular
situation.

Ensuring coherence and consistency : it is a major objective to ensure that the law is coherent and consistent.
An area of law which has developed over time may lack of internal logic. This was a major issue in the field of
consumer law, for example in the way in which different transactions were dealt with in separate statutes, with
some common provisions but some variations.

Consolidation: simplification and making the law more coherent are objectives which can be attained in
various ways. For example, in the case of an area of law which is governed by statutes, it might be appropriate
to consolidate separate pieces of legislation in one single new measure to ensure that matters which should be
treated in the same way are all subject to one set of legal rules.

Codification: codification results in a code which could include all the relevant provisions from existing
legislation, but combine this, with common law rules which have not been reflected in legislation so far. For
example, for a consumer contract it could include a single measure absorbing both prior legislation and
common law.

UK CONSUMER LAW
We need to start by providing a brief overview of the various components of UK consumer law: it is a complex
amalgam of domestic law and European Union law. UK consumer law is a mixture of private law rules,
administrative/regulatory provisions and also some criminal law rules.

For what regards private law elements, we have cases and legislation in the areas of both contract and tort law.
Contract law principles govern the formation, performance and discharge of all contracts, and there is generally
no distinction between consumer and non-consumer contracts in the case-law. Sometimes, the application of
particular principles may have been influenced by the fact that the contract in question could be described as
“consumer contract” but there is no separate system of consumer contract law. It is possible to find variations
or particular provisions specifically aimed at consumer contracts in contract law.

There are two types of control over contract terms:

1) the Unfair Contract Terms Act (UCTA) which provides stricter controls over certain types of term in
contracts where one party is the consumer.
2) The Unfair Terms in Consumer Contracts Regulations, which is a statutory instrument (strumento legale)
dealing specifically with consumer contracts which were adopted in order to implement EU Directives.

The existence of two parallel regimes for the control over contract terms, applying different tests, was long
regarded as problematic, and one of the projects directed by Hugh Beale was to recommend a consolidation of
the two measures. Its recommendations fed into the Consumer Rights Bill, 2014.

There were many legislative measures for consumer aspects of contract law, also in tort law. Case law was also
added both from domestic courts and the CJEU which interpreted these measures.

In addition to legislation and case-law in the private law field, consumer law also includes important
Administrative Law or regulatory provisions, derived partly from domestic and partly from EU law. The main
example still found is the Consumer Protection from Unfair Trading Regulations, which implemented the
Directive on Unfair Commercial Practices.

As this short sketch demonstrates, consumer law consists of consumer-specific measures and those of general
application, statute and case-law, and domestic and EU law. This is an example of how so many different
sources of law are put together to make up the full picture of this area of law. This complexity is a problem for
UK consumer law because of major lack of coherency.

One interesting feature of UK consumer law appears to be that only a small number of consumers will consider
taking their claims to court: out of those which do, hardly any case makes it to the High Court. This raises two
matters of concern: it becomes more difficult to figure out how the law works “in action” and, more
significantly, the vast majority of consumers will not involve the legal process at all when dealing with disputes.

If the consumers do not usually involve the formal legal process when seeking redress (risarcimento), this
raises a fundamental question: Are they able to enforce their legal rights? Evidence suggests that consumers
will attempt to solve any problems informally, many even without seeking advice. Even if consumers seek for
advice, the complexity and incoherence of consumer law can make it quite difficult to provide consumers with
advice which is easy for them to understand and to act upon.

The fact that consumers largely solve disputes on an informal basis should be considered and utilized
effectively when making the reform. In addition, such a complex area such be accessible to both users
(consumers and traders) and advisers, to ENSURE that consumer rights are not just there on paper but are
utilized.
At UK level, the Department for Business, Innovation and Skills (BIS) published a White Paper in 2009 in which
it promised to consider improvements to consumer law. It even commissioned an academic research report on
the need for and feasibility of consolidation and simplification of UK consumer law. The AIM of the report was
to bring together as many of the current statutes and statutory instruments as possible and to remove
inconsistencies.

So the Consumer Rights Bill was presented in June 2013 and commenced its parliamentary journey in early
2014: it is presented as an exercise in consolidation and simplification; whilst it does provide some
simplification of the law, in the specific the quality requirements of goods supplied to consumers, there are still
many aspects NOT included in this Bill. The Bill itself is divided in 3 parts:

1) The first part deals with aspects of consumer contracts regarding the supply of goods, services and
digital content. This concerns essentially the quality and fitness of goods previously found in three
separate acts into ONE place. There are also common provisions on remedies which apply the same set
of remedies to all types of supply transactions. But It could have been achieved greater simplification
and coherence by adopting the analysis in the Law Commission’s report about the distinct stages
involved in exercising the right to reject the goods and the right to terminate the contract as they exist
under the Sale of Goods Act 1979.
This Bill Is a significant step forward in terms of simplification, consolidation and creating more
coherent law on the supply of goods, services and digital content, but so much more could have been
done.
2) This part regards simplification and consolidation for rules which contain unfair terms in consumer
contracts. It will remove the split between Unfair Contract Terms Act of 1977 and the Unfair Terms in
Consumer Contracts Regulations 1999, introducing a single set of rules.
3) This part Is more general and includes improved provisions for the enforcement of consumer law, new
measures allowing for collective redress (risarcimento).

Final conclusions about it: Overall, the Bill does provide a degree of simplification, greater coherence and
partial consolidation of consumer law. However, it could easily have gone further, particularly with regard
to consolidating the main consumer law measures now in force. The Consumer Contracts Regulations, for
instance, remain separate from the Bill. Also the Consumer Protection from Unfair Trading Regulations
(2008) which implement EU’s Directive on Unfair Commercial Practices and deal with the regulation of
marketing and general trader behavior at all stages of a consumer transaction also remain separate.

The Consumer Protection (Amendment) Regulations (2014) will just “amend” existing legislation by
inserting new provisions into existing regulations. As the purpose of these regulations is to introduce new
rights for consumers, it seems surprising, to say the least, that these were not introduced as part of the
Consumer Rights Bill.

Since the volume of case law from the CJEU continues to increase, the need to monitor and review
consumer legislation to ensure it complies with EU law is an ever-pressing issue. Why there is the need to
keep legislation under constant review? There are two main reasons:

1) To ensure that coherence and consistency is maintained in the light of relevant court rulings.
2) To make the law more accessible to those directly affected by it (like consumers, traders and those
involved in advising consumers). Law reform is an opportunity to make the law more accessible or
user friendly, if not to consumers themselves, than at least to those who are going to provide
advice and guidance to consumers or traders.
Beale suggests a restatement of common law rules, using simple language and structures. Restatement is
intended to assist those charged with the task of applying existing law. A restatement can bring together in one
place an exposition of the law as it stands, based on common law and relevant statutory provisions.

The idea of Restatement merits further consideration, arising two major questions: would a restatement be
feasible in terms of actualization?? Second, who will be the best placed to produce such a restatement?

Answering these questions requires to think about the form that such a restatement will take place. Beale talks
of a semi-official restatement which would not have to be necessarily in the form of legislation. But if it is NOT
in the form of legislation. the pool of potential authors can be drawn more widely, and the composition of
whichever group could potentially have a SIGNIFICANT IMPACT on its overall content. The third question is
what it would happen once the restatement it has been produced: Beale envisaged (ha previsto) some formal
approval, whether trough judges or the Law Commission, which will ensure that the restatement would be
regarded as authoritative. BUT Nil Jansen argued that authority of non-legislative texts largely arises not from
any kind of formal approval, but primarily through practical acceptance by those for whom the text was
created. A re-statement of the law in clear language is needed and the model envisaged here would adopt
features of other well-known restatements, like the Principles of European Contract Law (PECL) and its
successor, the Draft Common Frame of Reference, the Acquis Principles etc.

It may be asked why a restatement should be considered. The answer lies in the way legal material has been
presented and supplemented in the various restatements mentioned. A restatement essentially contains 4
elements:

1) A particular legal rule is stated.

2) There is a complementary which expands on the meaning and purpose of the rule.
3) There are examples given as to how the rule operates in practice.
4) Finally, there is an indication of the legal sources (legislation and cases) on which the particular rule is
based.

With a restatement, different sources of law can be combined in one place to present a more coherent and
complete picture of the law.

DIFFERENCES BETWEEEN CODIFICATION AND RESTATEMENT.

The purpose of codifying the law is generally to bring together legal rules in one statute. So there is a parallel
with the restatement idea considered here. However, a restatement should remain flexible and capable of
further development, whereas a code is generally intended to be complete. A codification risks, in determining
how situations in future should be dealt with, that provisions in CODE might end up being rather too general
and insufficiently specific.

Furthermore, a codification will be first a legally binding text, therefore will have to be drafted accordingly.
Codifications tend to be too superficial to offer a full and proper explanation of each provision. A restatement
can offer much more by way of explanation.

Since codification means legally binding, to adopt it we need the appropriate legislative procedure: to amend
or update this text, this would have to be done through formal procedures. Instead, restatements are non-
binding texts: the advantage of these is that they can be updated more quickly and with greater ease than any
parliamentary text. Case-law developments as well as changes made by legislation can be accommodated by
amending the text, the commentary and the examples as appropriate.
One major concern would be the question of how the initial creation and subsequent updating of any
restatement could be resourced. It is a major task to ensure consistency between sections provided by
different authors. The viability of this approach would therefore depend on an analysis of the costs incurred in
creating the first restatement, and then the need for subsequent updating.

It is of enormous importance that consumers and traders are aware of their respective rights and obligations. A
restatement would be undoubtedly a useful tool in ensuring that consumer law will be more than just
legislation that Is rarely enforced.