Mark T. Kawakami, Catalina Goanta, , Even Lawyers are Consumers: Perceiving Business Attitudes in Online Contracts

Mark T. Kawakami, Catalina Goanta, , Even Lawyers are Consumers: Perceiving Business Attitudes in Online Contracts (2015). in MBM Loos & I Samoy (eds), Information and notification duties. Intersentia, Cambridge, pp. 155-180, 2015. Available at SSRN: https://ssrn.com/abstract=3303635

Abstract

When lawyers research EU consumer law, they generally tend to focus on interpreting applicable rules and discussing case law. Using the subject of withdrawal rights, which will be the main topic of this paper, we can see that there is an abundance of literature that covers rules and cases, answering questions such as whether the right to withdraw is efficient (and/or necessary), or whether the EU should stay the course with their maximum harmonization of mandatory withdrawal rights. Furthermore, there are countless articles that purport to analyze mandatory withdrawal rights from the consumers’ perspective by looking into behavioral economics or by taking into consideration consumer psychology. Our primary focus in this contribution, on the other hand, is to argue that the mere existence of these types of literature might mislead some to believe that the interests of the consumers have thoroughly been discussed, considered, and incorporated into the existing conversation. While the aforementioned contributions do indeed offer unique and interdisciplinary approaches for the determination of whether the mandatory right to withdraw is in the best interest of consumers, many – if not most – of the existing research fails to actually step into the shoes of a consumer. Rather than attempting to answer the question of the ‘likely effect’6 of mandatory withdrawal rights on consumers (as some have already attempted), this research will go beyond mere speculation and documents some actual experiences that consumers had when exercising their withdrawal rights. Our motivation behind this research was our concern about the apparent disconnect that exists between how we, as academics, debate the pros and cons of withdrawal rights vis-a-vis how we, as consumers, exercise withdrawal rights in our daily lives. It is our working hypothesis that once we climb down from the ivory tower and attempt to return an item that we purchased online, there is a world of previously unaddressed frustrations that can only be experienced by consumers. After all, everyone is a consumer, even the lawyers amongst us.

This paper consequently wishes to answer the following question: ‘What standard of consumer protection do businesses actually offer to consumers in online contracts?’ In order to answer this question, this contribution looked at internet contracts by conducting a personal experiment in three European jurisdictions: England, the Netherlands and Romania. For every jurisdiction, we determined the e-store that had the largest market share in the sale of information technology products. We then ordered the same product (an Apple ‘Magic Mouse’) from all identified e-stores and subsequently exercised our withdrawal rights. The European perspective on mandatory withdrawal rights was then compared to Japanese and United States (New York) law in order to determine the protection granted to consumers in online sales, and the nature of this protection (mandatory/optional/insurance).