International and Comparative Law Quarterly

Article

DIRECTIVE 93/13 AND THE ‘PRICE TERM EXEMPTION’: A COMPARATIVE ANALYSIS IN THE LIGHT OF THE ‘MARKET FOR LEMONS’ RATIONALE

Michael Schilliga1

a1 School of Law, King's College London.

Abstract

In the light of the Supreme Court decision in OFT v Abbey National on unarranged overdraft fees in current account contracts, this article analyses the price term exemption at the heart of Directive 93/13 in its European context, and on a comparative basis. It argues for an interpretation in line with the ‘market for lemons’ rationale, which best fits the regulatory outline of Directive 93/13, and the European Court of Justice's case law. Under this approach, only those contract terms that are subject to the correcting forces of markets and competition are part of the ‘main subject matter of the contract’ and should be exempt from assessment of fairness under Directive 93/13.