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Inefficient clauses or consumer choices? Lessons from cognitive psychology

di - 1 Ottobre 2012
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The possible solutions
At this point the problem becomes of a philosophical nature: should individuals be left free to choose even when they appear to make mistakes, because the preferences they reveal are those that they feel as their own, or should they be guided towards the options that according to criteria of instrumental rationality appear to be optimal?
Finding a solution that does not violate the liberal principle and that meets the needs of regulations that can be applied turns out to be very difficult. The fact that the Italian Consumer Code (and the legislation of many other European countries) has declared abusive clauses to be null and void without providing for an increase in the consideration for the drafter under the clause more favorable to consumers that becomes part of the contract, leads consumers to opt to apply for clauses to be declared null.
If the legislator had foreseen that it would have been necessary to revise the consideration to recompense the drafter for the greater expense incurred, we would have had a solution similar to what was being sought: consumers wishing to maintain the abusive clauses so as to have a saving of money would not have taken any action; by contrast, consumers preferring the efficient clauses would apply for clauses to be declared null, taking account, while recognizing that the consideration would have been revised to consider the greater expense incurred by the drafter. But what has been described above may appear to be an excessively difficult legal system to apply, one that more than anything else would generate iniquitous results. In fact, knowing that the consideration will be revised upwards if a clause is declared to be null, the drafter will have every possible incentive to insert inefficient clauses, since, in the worst case, together with the declaration of nullity, it will receive an increase in the consideration that will make good its losses. Its dominant strategy will therefore be to insert inefficient clauses.

In this paper an attempt has been made to highlight how the clauses that are traditionally considered to be inefficient may actually be wanted by consumers. This anomaly has its origin in the fact that each individual builds a mental budget by dividing up the money he has available among the needs he intends to satisfy.
According to consumers’ reasoning, money is not fungible, in the sense that amounts cannot be transferred from one expenditure item to another. Consumers that behave in this way may sometimes find that they have finished the amount they budgeted for an item while wanting to buy some more of it. Since additional time, efforts and risks are not in the budget, consumers accept clauses that are traditionally considered to be inefficient so as to stay within their budgets while increasing the amount they can spend for a given good. Thus, for example, since additional time and efforts are not counted in the budget, a consumer will be willing to make a sacrifice with a value of 6 for a service that would cost the producer 3. This is an inefficient solution but it allows the consumer to stay within his budget.
If this is how things stand, inefficient clauses that are deemed to enter into contracts as a consequence of information asymmetry could instead be clauses that consumers actually want, even if on grounds that would traditionally be considered irrational.
From this it should follow that there is a need for caution in mandatorily replacing inefficient clauses in contracts because that entails an increase in the consideration and puts consumers in an uncomfortable situation.
This does not mean that the theory of budgeting is the correct one; the aim is only to encourage judges to decrease the tendency to nullify all clauses that create a significant imbalance between rights and obligations to the disadvantage of consumers (and this reasoning regards all European jurisdiction). Mental budgeting theory is supported by an extensive empirical literature and it would therefore be a serious error not to take it into account.

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