8 Restrictions on freedom to withhold information at pre-contractual stage

Similarly, restrictions on the parties' freedom to contract as they choose may be justified even outside the classic cases of procedural unfairness such as mistake, fraud, duress and the exploitation of a party's circumstances to obtain an excessive advantage. A particular concern is to ensure that parties were fully informed. The classical grounds for invalidity because of mistake, which are reflected in the provisions of the DCFR mentioned above, were quite limited: for example, in many laws the mistake had to be as to the substance of the thing sold. This notion was developed when the goods or services which were to be supplied were usually very much simpler than they are today. In today's conditions parties often need much more information before it can be said that they were fully informed. Thus the law needs to deal not only with cases of inequality of information about the basic characteristics of the goods or services to be supplied but also as to other relevant circumstances. It may also need to go beyond the general contract law of some Member States and impose positive duties to give information to the uninformed party. In the DCFR, the classical defence of mistake has been supplemented by duties to give the other party the information which is essential to enable that party to make a properly informed decision. These rules apply particularly to consumer contracts, but the problem may arise also in contracts between businesses. Normally a business can be expected to make full enquiries before concluding a contract, but if good commercial practice dictates that certain information be provided by one of the parties, the other party is likely to assume that it has been provided. If in fact full information has not been provided, and as a result the party concludes a contract which would not have been concluded, or would have been concluded only on fundamentally different terms, the party has a remedy.