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The lack of a consumer law category

Initially, consumer law was not recognized as a separate legal category, because the buyer was not believed to be in need of special legal protec- tion.[1] When the majority of people still subsisted on agricultural goods, only basic transactions were concluded in order to purchase goods which could not easily be produced on the family farm. This changed in ancient Rome, where a number of contractual laws were introduced which formed the basis of future consumer laws. For instance, Roman law provided for an action against the seller in order to protect buyers from any hidden defects in goods purchased. Furthermore, Roman law introduced the principle that the seller had to be in good faith in seeking not to cause damage to the buyer.[2]

In the medieval age, the legal institutions to protect the buyer could again be found in the jus commune of the time. However, according to a German saying ‘buy with open eyes’, the purchaser had to assess the good carefully before the transaction, because it was difficult to withdraw from the contract in the case of a defect.[3] At that time, there was no significant need for consumer protection because markets were relatively small and the good reputation of the seller and the personal relationship between tradesper- sons were deemed sufficient to protect buyers from any potential abuse or harm.[4]

This relationship-oriented exchange disappeared, however, with the Industrial Revolution, owing to progress in transport and infrastructure, which facilitated exchange between diverse cities and states. As a result, the market expanded from a regional, to a national and world-wide exchange. With the arrival of mass production, producers and distributors became anonymous entities for the buyer and trade became more complex. Consequently, regulation was necessary to organize the relationship between consumers and sellers in order to prevent market abuses.

In the nineteenth century, in line with Adam Smith’s ‘invisible hand’, it was assumed that the market was sufficient to ensure consumer welfare.[5] As a result, specific protection of the weaker contractual party was considered unnecessary and a focus on contractual autonomy was predominant.[6] This slowly changed with emerging consumer mobilization, which first became visible in Britain, aimed at overcoming the information deficit through the development of consumer protection measures.[7] Driven by consumer movements, this trend was followed in a number of countries, eventually leading to an international recognition of consumer law.[8]

  • [1] See Everson & Joerges (n 2) pp. 4-7.
  • [2] See more in V Truchet, ‘Le concept du consommateur informe en droit europeen’ , in R.Bieber (ed.), Swiss Papers on European Integration (Bern-Zurich: Stampfli-Schulthess, 2000), p. 7.
  • [3] Truchet, ‘Le concept du consommateur informe en droit europeen’ (n 10), p. 7.
  • [4] Truchet (n 10), p. 7.
  • [5] M. Everson, ‘Legal Construction of the Consumer’, in F. Trentmann (ed.), The Making of theConsumer: vol 1, Knowledge, Power and Identity in the Modern World (Oxford-New York: Berg, 2006), pp. 100-1.
  • [6] Everson, ‘Legal Construction of the Consumer’ (n 13), pp. 100-3.
  • [7] In 1962 the ‘Molony Report’ of the Committee on Consumer Protection was issued in theUK; see more in I. Ramsay, Consumer Law and Policy: Text and Materials on Regulating ConsumerMarkets (Oxford: Hart Publishing, 2012), pp. 3-6.
  • [8] F. Trentmann (ed.), The Making of the Consumer: vol 1, Knowledge, Power and Identity in theModern World (Oxford-New York: Berg, 2006).
 
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