Control of Price Related Terms in Standard Form Contracts: General Report: Judicial Control and Other Means of Price Control

Competitive market economies work with the basic assumption that the supply side cannot charge more than their cost of supply given that rational and perfectly well-informed customers know their preferences and are responsive to any price change in the market. However, markets are never fully transparent, and findings of behavioural sciences show that especially consumers act based on imperfect rationality due to systematic biases. Pricing structures that serve to hide rather than reveal the real cost of the goods and services pose one of the main challenges to markets as they abuse biases on the demand side to the greatest extent possible. “Hiding” price related terms in standard form contracts is a prominent way of creating non-salient prices and is therefore a debated issue in many recent high court decisions of different countries. This paper conducts a comparative study on developments in 28 jurisdictions and discusses the efficiency of ex ante regulatory as well as ex post judicial intervention. The results show that controlling prices and price related terms is a multifaceted and complicated issue which entails a holistic approach, involving more transparency, smarter information to be provided to customers, but sometimes also hard paternalistic interventions such as price caps. Besides, more effective ways of collective proceedings and redress mechanisms need to be implemented.