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*. Professor of Commercial Law.
My thanks are due to Professors Roger Brownsword, Lorna Fox-O'Mahony, Sabine Michalowski, Onyeka Osuji, Christian Twigg-Flesner and the anonymous reviewers for comments on drafts.
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Introduction
This article considers how consumer contract law in the UK is influenced by alternative ethical visions of the ideal market order. There has been previous work, for example, on the relatively narrow question as to how competing judicial ethics affect interpretation of rules on standard terms and commercial practices-the rules being interpreted by some judges in ways that prioritise business self-interest and consumer self-reliance, and by other judges in ways that are more protective of consumers.1This article is significantly more ambitious in scope. It focuses on a much larger part of consumer contract law: the legislative rules on conformity of goods, services and digital content (DC), and on unfair terms. It also asks a number of important new questions about the nature and significance of competing ethics. What are the key elements of the ethical framework proposed here? How does such a framework improve our understanding of different visions of consumer protection? How are these different visions reflected in the actual rules? These are the "ethics and protection" questions. Then there is the question as to how competing ethics affect legal clarity and certainty-the "ethics and clarity/certainty" question. The remainder of this introduction explains how the answers to these questions are developed over the subsequent parts of the article, and why these issues are so important.
The "ethics and protection" questions are dealt with over Sections II-IV. Section II proposes a new competing ethics framework and shows why this is a highly effective way of describing alternative visions of consumer protection. Under this framework, there is one ethical vision of consumer law which places strong emphasis on business self-interest/consumer self-reliance. This would be expressed in rules providing limited consumer protection: allowing businesses to use their "inputs" or "processes", to escape responsibility for poor quality outcomes, and to legitimise imposition of outcomes that are harsh on consumers. Towards the other end of the ethical spectrum, is an ethic more sensitive to consumer "need", namely the need for consumers to be protected due to their perceived weaker position. This would be expressed in...