Is Transparency Not Unfair Terms?

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autonomous decision . Once this decision is made, the only option left is to challenge the substance of the term. For this to succeed, a significant disadvantage for the consumer must be proven. This seems much more difficult than simply showing that the term was written in microscopic font or was tucked between the sheets.
For the reasons described above, Court’s insistence on high level of transparency is insufficient to guarantee protection for consumers and in fact may lessen it. However, the inclination that non-transparent terms are not unfair per se is supported. Consumers’ indifference to the existence of transparency might well be transposed to the lack of it. Since consumers suffer from the behavioural flaws described above, they cannot take full use of disclosure mechanisms. The proposition that transparency should not legitimize unfair terms is also welcomed, because in spite of accepting them, consumers might have not read or understood them.
The “Average” Consumer Test
Whilst the Court advocates for high level of transparency as well as substantive fairness test, it sets unrealistic threshold for the consumer who is to be protected. The apparently high level of protection is severely circumscribed by the exaggerated expectations of consumer’s behaviour. The “average” consumer who the Court intends to protect is “reasonably well informed and reasonably observant and circumspect” . It is this consumer who needs to understand the contract terms and foresee
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