Published: 2023-05-06

Interpretation of the Instruction for Officials from 46 ad and modern Dilemmas of Civil Law. Does the “crafty consumer” deserve protection?

Jan Rudnicki
Zeszyty Prawnicze
Section: Artykuły
https://doi.org/10.21697/zp.2023.23.1.02

Abstract

The aim of the article is – at the suggestion of Leon Petrażycki, who postulated the use of the Roman legal instinct recorded in the sources to assess the problems of contemporary law – to confront the dilemma related to consumer protection with the Roman practice of granting special protection to the weaker party of a private law relationship. In the case pending before the CJEU, the plaintiff (consumer) is a person whose education and professional experience mean that the entrepreneur (bank, lender) does not have an advantage over her in terms of information about the true extent of contractual obligations and market realities. Thus, one of the main characteristics attributed to the consumer in justification of his/her special protection is completely eliminated. The mentioned situation, not uncommon in practice, fnds an analogy in Roman source texts regarding the use of senatus consultum Velleianum; a resolution providing for special legal protection for a woman against the effects of the surety given by her. Ulpian (D. 16,1,2,3) and Paulus (D. 50,17,110,4) agree that the purpose of the indicated regulation is not to protect a person that hides cunning or deceit under the appearance of weakness.

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Rudnicki, J. (2023). Interpretation of the Instruction for Officials from 46 ad and modern Dilemmas of Civil Law. Does the “crafty consumer” deserve protection?. Zeszyty Prawnicze, 23(1), 39–52. https://doi.org/10.21697/zp.2023.23.1.02

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