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Ewoud HondiusThe Protection of the Weak Party in a
Harmonised European Contract Law:
A SynthesisABSTRACT. Protecting the weak party has been one of the cornerstones of the development of contract law over the past century. An enduring intellectual debate setsthose who would advocate a less interventionist model against those including thepresent author who remain wedded to the virtues of protection. That debate lies at thecore of this Special Issue. The European Union has been and remains at the forefront ofthe renovation of the law, and it now confronts questions that spill over from its longstanding preoccupation with consumer law into the eld of private law more generally.The protection of the weak party has developed slowly over the lastcentury, to include rst employees, then tenants and hire-purchasers,and nally consumers and patients. This development has not come toan end. It is bound to continue, as new weak parties such as asylumseekers and small businesses emerge into the limelight, whereas theneed to protect existing categories of weak parties may lose some of itsimportance. Consumer protection has been developed especially onthe European level and indeed it provides the best example of harmonisation of private law. Harmonisation of private law itself hasrecently become a major issue in Europe. The Commissions ActionPlan (European Commission, 2003), examined in this Special Issue byStaudenmayer, will no doubt deepen that interest.Neither of these developments has remained unchallenged, nor hastheir European mix. The points of contention deserve closer examination. First, the protection of the weak has in some circles come to bethought of as old-fashioned. Second, harmonisation of contract law ona European level has also been criticised. Third, the relation betweenthe protection of the weak and the movement towards a harmonisedcontract law has come under strain. In these remarks, which are designed to draw together the threads found in this Special Issue, I want tomake some observations on these three issues, but not before recallingmy own point of departure. I will round o with some conclusions.Journal of Consumer Policy 27: 245251, 2004.
2004 Kluwer Academic Publishers. Printed in the Netherlands.246Ewoud HondiusIn these remarks I will focus on what divides us, rather than whatunites us even if the latter is much more important than the former.Even then, only a limited number of issues can be dealt...