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Humboldt-Universität zu Berlin - Prof Dr Susanne Augenhofer

Yale-Humboldt Consumer Law Lecture 2015

The second Yale – Humboldt Consumer Law Lecture was held on 1 June 2015 in the Senatssaal of Humboldt-University Berlin. Initiated by Professor Susanne Augenhofer (LL.M. Yale Class of 2003) in 2014, this annual lecture series aims at fostering a transatlantic academic exchange in the field of consumer and commercial law. This year’s law lecture was connected with the KOSMOS-dialogue for the first time. The lecture focused on the topic “The Rational Consumer and Standard Contract Terms”. For this year’s opening event we were privileged to welcome: Prof. Florencia Marotta-Wurgler from New York School of Law, Prof. Richard Brooks from Columbia Law School and Prof. Alan Schwartz from Yale Law School. Their lectures dealt with the following topics:

  • Prof. Richard Brooks: Knowledge in Law and Economics and the Information Fiduciary

  • Prof. Florencia Marotta-Wurgler: Does Disclosure Work? Some Realities and Challenges in Consumer Markets

  • Prof. Alan Schwartz: The No Reading Problem in Consumer Contract Law

In the course of his welcoming speech Professor Peter Frensch, Vice President for Research of the Humboldt University, highlighted after some introductory words the importance of legal discourse on the field of standard contract terms against the background of the progressing digitization of the commercial trade and the subsequent new contractual possibilities. After his remarks, the host, Professor Susanne Augenhofer, welcomed the audience and the American speakers.

The focus of all presentations was on rationale dealing with standard contract terms from the consumers' view and empirical examinations on the use of and awareness about standard contract terms.

Professor Richard Brooks dealt especially with the problem of the use of partly confidential data of private individuals, what has to be seen in the context of a rising importance of multinational companies. After a summary of the different types of information he presented the concept of an "information trust": This model should define the rights and duties of the fiduciary, e.g. a multinational company and the trustor, normally consumers, that result from the disclosure of information.

Following on this presentation Professor Florencia Marotta-Wurgler showed the problem of the disregard of standard contract terms by the consumer, which she illustrated by empirically collected data. Moreover, she examined the question of whether a full disclosure of standard contract terms can lead to the result that the consumer will in fact read them.

Building on this presentation, Professor Alan Schwartz highlighted the problem that is caused by a disregard of standard contracts terms in American law: In contrast to European and German provisions that have an especially consumer-protective approach, all standard contract provisions that have been presented to a consumer are enforceable in American law  regardless whether they have been read or not.

In these talks and in the ensuing discussion, the different approaches to consumer law were highlighted: Whereas in Europe especially individually negotiated provisions are fundamental, in the USA the pursuit of competitive markets dominates as an instrument of consumer law.