Kontrola klauzul w umowach między przedsiębiorcami : założenia legislacyjne

Państwo i Prawo 2025, nr 5, s. 63-86.

Współautorstwo: Namysłowska, Monika; Rott-Pietrzyk, Ewa

The article addresses the need for reform in contract law concerning relationships between businesses, where structural inequalities and abuses of contractual power are increasingly common. The authors argue that the binary division between consumer and professional transactions is insufficient, as it fails to account for the vulnerabilities of smaller entities operating formally as businesses. In practice, B2B contracts are often imposed by the stronger party using standard terms, without genuine negotiation, which leads to imbalanced obligations and unequal risk distribution. The existing civil law provisions prove inadequate in countering these phenomena. The article includes a general analysis of solutions adopted in national laws and model law instruments, and proposes the introduction of a system for the control of contract terms in professional relationships into Polish law. The aim of the proposed reforms is to restore contractual balance and enhance fairness in commercial transactions.

Shadow contract law in the platform economy

Enforcing private regulation in the platform economy / edited by Federica Casarosa and Mateusz Grochowski. Tübingen : Mohr Siebeck, 2025, s. 97-122.

The emergence of the platform economy was a momentous development in early 21st-century capitalism, concentrating vast economic and political power within a small number of market entities. This power, coupled with limited oversight, has given platforms the unique capacity to establish and enforce rules governing horizontal contracts among users. These rules parallel state-made contract regulations, generating fragmented “shadow” legal orders that increasingly permeate diverse sectors of the platform economy – from marketplaces such as Amazon and eBay to social media platforms (whose terms of service often contain extensive meta-contractual provisions). Despite the growing scholarly attention given to the platform economy, the phenomenon of private regulation remains underexplored. This paper seeks to address that gap by examining platforms as architects of alternative contractual rule systems. The analysis maps prevailing theoretical frameworks for these rules and outlines their structural characteristics, while also identifying the specific concerns and risks associated with this parallel form of regulation and considering possible regulatory responses. In doing so, the paper portrays a regulatory structure in formation—one emerging from the bottom up under the combined pressures of market dynamics and the unprecedented concentration of power in the platform economy.

Consumer Vulnerability : A Genealogy

European Contract Law and Future Challenges / Stefan Grundmann and Pietro Sirena (eds.). - Louvain-la-Neuve: Intersentia 2025, s. 23-52.

Vulnerability has become a central concept in contemporary discussions on contract regulation and market oversight. In particular, it features prominently in the European Union’s digital market regulatory framework, where appeals to vulnerability frequently serve as justifications for intervention in horizontal market relationships. These arguments are typically grounded in the recognition that market actors are not a homogenous group; rather, they exhibit varying degrees of exposure to risks and potential harm. This paper explores the conceptual foundations of vulnerability as a distinctive category within EU consumer law. It begins by tracing the historical and theoretical roots of vulnerability in consumer protection discourse, before turning to two principal approaches to its conceptualization: (1) vulnerability as a function of static, individual characteristics of consumers, and (2) vulnerability as context-dependent, arising from particular market structures and dynamics that increase the likelihood of harm. Building on this framework, the paper offers a critical examination of the current uses of the vulnerability concept, highlighting key limitations and ambiguities that—if left unaddressed—risk undermining its effectiveness as both an analytical tool and a normative guide for policy-making. Ultimately, the paper seeks to clarify the core elements that constitute consumer vulnerability and to assess the concept’s practical and theoretical significance for the development of EU consumer law and policy.

The Knowledge Gap in Contract Law

Oxford Studies in Private Law Theory. Volume III / Paul B Miller, and John Oberdiek (eds). - Oxford Private Law Theory. - Oxford: Oxford University Press, 2025, s. 85-114.

This chapter addresses a central yet largely overlooked issue in contract law: its epistemic dimension—namely, how knowledge about the market is produced and utilized as a basis for creating rules. It examines contract law as a dual-purpose epistemic infrastructure, designed to both extract knowledge from the market and to integrate it into contracts’ regulatory architecture. From this vantage point, the chapter first takes a closer look at default rules, which have long been a central component of contract law’s epistemic design. In the second step, the analysis focuses on the newly emerging approaches to knowledge production. It pays particular attention to the asymmetry in access to information and the unequal distribution of knowledge-generation costs between the state and market actors in the contemporary digital economy. The chapter critically examines alternative methods for distributing “epistemic labor” between sovereign public authorities and market participants, including various forms of co-regulation and standardization.

EU Consumer Law : a Few Prognoses for 2025

Common Market Law Review 2025, t. 14, s. 1-5.

Współautorstwo: Carvalho, Jorge Morais; Luzak, Joasia

2025 opens a new chapter in the trajectory of European consumer law. With a new Parliament and European Commission—and thus a fresh mandate to regulate consumer issues—the next few years may present interesting and significant challenges. Undoubtedly, issues of digital fairness will be at the forefront of the EU's consumer agenda in the near future.1 Additionally, EU consumer law has faced a number of challenges and questions that often stem from issues originating in previous years. In the first issue of the EuCML in 2025, we would like to highlight several such issues that are likely to be on the policy, academic, and judicial agendas over the coming year. This Editors’ pick is, of course, far from exhaustive, but we hope it will provide valuable guidance through more detailed (and sometimes less obvious) matters in EU consumer law.

Redakcja:

The Cambridge Handbook of Algorithmic Price Personalization and the Law

Współredaktorstwo: Esposito, Fabrizio

Cambridge ; New York : Cambridge University Press, 2025

ISBN 9781009367905; 9781009367929; 9781009367912; 9781009367899

XVI, 332 strony. Indeks.

In the current digital era, the growth of digital commerce and the data-driven economy has created new opportunities for firms to predict consumer behavior, including their willingness to pay a certain price. This practice of algorithmic pricing has become a widespread business model, raising concerns among economists and lawyers about its impact on the market and society. The Cambridge Handbook of Algorithmic Price Personalization and the Law is a comprehensive overview of the key debates surrounding algorithmic pricing, written by a multidisciplinary group of scholars with expertise in legal, economic, data science, and marketing research. The Handbook critically examines existing knowledge, identifies weaknesses, and proposes feasible alternatives for legal analysis, market regulation, and protection of vulnerable individuals. This comprehensive overview of algorithmic pricing is a one-stop reference for the political and legal community.

Introduction : Algorithmic Price Personalization : From Laesio Enormis to Laesio Algorithmica?

Współautorstwo: Esposito, Fabrizio

The Cambridge Handbook of Algorithmic Price Personalization and the Law / edited by Fabrizio Esposito (NOVA Law School, Portugal), Mateusz Grochowski (Tulane University, Louisiana). Cambridge ; New York : Cambridge University Press, 2025, s. 1-26.

Of the many concerns triggered by the rapid growth of digital commerce and the expansion of the data-based economy, price personalization occupies a prominent yet peculiar position. For many firms, the availability of big data and refined algorithmic tools has opened unprecedented avenues to learn about consumers’ financial and personal standing, market preferences, and transactional behaviour patterns. Building on these insights, firms have (at least to some degree) obtained an ability to make behavioural predictions about the future conduct of their clients, including their interest in a particular assortment of products, responsiveness to certain forms of advertising, and – not least importantly – their willingness to pay a certain price.

Price Personalization versus Contract Terms Personalization : Mapping the Complexity

Współautorstwo: Davola, Antonio ; Esposito, Fabrizio

The Cambridge Handbook of Algorithmic Price Personalization and the Law / edited by Fabrizio Esposito (NOVA Law School, Portugal), Mateusz Grochowski (Tulane University, Louisiana). Cambridge ; New York : Cambridge University Press, 2025, s. 65-87.

Algorithmic pricing did not arise in a vacuum but is part of a wider phenomenon of using personal data to profile individuals on the market and make predictions about their preferences and behaviour in future market settings. The potential for price personalization is one of the most important and salient aspects of the wider phenomenon of algorithms and big data analytics that have come to dominate consumer market. The personalization of the contract should not be regarded separately from the personalization of other elements of a market relationship, neither theoretically nor from a practical perspective.

Redakcja:

Enforcing private regulation in the platform economy

Współredaktorstwo: Casarosa, Federica

Tübingen : Mohr Siebeck, 2025

Seria: Studien zum ausländischen und internationalen Privatrecht ; 542

ISBN 9783161639036;

XV, [1], 324 strony.

The book focuses on online platforms as the out-of-state regulators of social and economic issues. The analysis embraces regulatory schemes created by platforms and the interrelation between them and the state's supervision and enforcement. The volume consists of three parts: first, the foundational issues of private regulation in the entire platform economy or in its substantial parts; second, the cross-sectoral questions of platforms' private regulation, such as the enforcement of rules created by platforms under EU contract law, and the 'internal' vs. 'external' enforcement of platform regulatory frameworks; and third the judicial, doctrinal and policy discourses addressing the enforcement of the rules created by platforms in selected EU Member States. The authors seek to provide a broad outline of overlapping issues in the platforms' self-regulation and the various responses adopted in various jurisdictions.

Beyond the State or in Its Proximity? : Private Regulation in the Platform Economy and Its Enforcement

Współautorstwo: Casarosa, Federica

Enforcing private regulation in the platform economy / edited by Federica Casarosa and Mateusz Grochowski. Tübingen : Mohr Siebeck, 2025, s. 9-29.

Empirical insights into personalized pricing

Współautorstwo: Esposito, Fabrizio; Heidary, Kimia

Empirics and Consumer Law in Changing Markets / edited by Gitta Veldt, Kimia Heidary, and Vanessa Mak. - Cheltenham: Edward Elgar, 2025, s. 106-131.

With the technology for algorithmic personalized pricing evolving rapidly, so have concerns about fairness, transparency, and equality. The complexity of the practice of algorithmic price personalization raises the question of the extent consumer law can (and should) address these challenges. We argue that although empirical research so far has helped shine a light on the practice and the perceptions of stakeholders, there are different dimensions in personalized pricing that need to be considered before empirical findings can be translated into legal and/or policy implications. We discuss the legal relevance of the challenges associated with the practice, explore the state of the art of empirical research on this topic, and then offer reflections on how our proposed research agenda can help advance the current regulatory debate on personalized pricing.

Algorithmic speech harm

Loyola Consumer Law Review 2025, t. 47, nr 2, s. 175-UZUPEŁNIĆ