Nudging in het contractenrecht ter bescherming van zwakkere partijen

Abstract

Contract law offers protection to those who are defined within the legal system as weaker parties, such as employees, tenants, and consumers. In that context, weaker parties are routinely and tacitly assumed to be acting in an economically rational manner, an assumption that affects when and how they are offered protection. But insights from behavioral science reveal that people – and thus weaker parties too – have limited cognitive capacities and by no means always make economically rational decisions. The discrepancy between how weaker parties actually make decisions and how they are assumed to do so leads to deficiencies in their current protection. Although nudging could potentially be applied to better protect weaker parties without restricting their freedom of contract, no systematic research yet exists on how to do that and what the limits are to how that may be done. This doctoral thesis therefore answers the question as to how nudging can contribute to the protection of weaker parties in Dutch contract law. The first part – the legal framework – addresses why, when and how weaker parties are protected, and the deficiencies of their current protection. The second part – the theoretical framework – analyses the potential and limits of using nudging to protect weaker parties. The third part – the case studies – applies the theoretical framework to three issues concerning the protection of weaker parties, illustrating the operation of the theoretical framework and making specific recommendations for applying nudging to protect weaker parties. Nudges that help people make their own decision can contribute to more and better protection in case various specific types of lack of cognitive capacity or lack of ability to resist occur and, indirectly, sometimes also to more and better protection in case a lack of information occurs. Steering nudges can contribute to more and better protection in case of a lack of cognitive capacity, a lack of ability to resist, or a lack of information in general. That nudging can help to protect weaker parties does not mean that it is a cure-all. Indeed, the scope of nudging is limited by several factors. But this is no reason to be skeptical about nudging to protect weaker parties in general. That would amount to throwing the baby out with the bathwater. After all, the research presented here provides a theoretical framework on the basis of which legal practitioners, including legislative drafters and judges, can assess whether and, if so, how nudging can be applied to protect a weaker party. In doing so, this research contributes to a contract law in which adequate protection is offered not only to weaker parties who are economically rational, but also to real-world weaker parties.