Le clausole vessatorie nel diritto europeo dei contratti

Comparing different legal systems in Europe, the essay points out that the judicial control over unfair contract terms differs depending on the purposes of legal policy pursued by national rules, reflecting the deep cultural differences between European countries. The different regulatory models generally appear to be governed by two distinct background philosophies. According to a first approach, the control over the content of the contract is justified on the basis of market failures which are caused by the information asymmetries between the parties and which require a judge's intervention aimed at preventing a party transfers on the other the risks that it could carry with lower cost. A different model of discipline, based on the "theory of inequality of bargaining power', is adopted by other systems, in which the control of unfairness is aimed at the protection of the consumers, as the weak contracting parties. These two different approaches are reflected in the scope of the national legislations, in the criteria for the assessment of unfairness and in the remedies available to the consumers.