11 Minimum intervention

Even when some intervention can be justified on one of the grounds just mentioned, thought must be given to the form of intervention. Is the problem one that can be solved adequately by requiring one party to provide the other with information before the contract is made, with perhaps a right in the other party to withdraw from the contract if the information was not given? In general terms we are concerned, as explained above, to ensure that when parties conclude contracts they should be adequately informed. This suggests that if they were provided with the relevant information, they should be bound by the contract to which they agreed. But in some cases problems will persist even if consumers (for example) are ‘informed’, possibly because they will not be able to make effective use of the information. In such a case a mandatory rule giving the consumer certain minimum rights (for example, to withdraw from a timeshare contract, as such contracts are typically concluded without sufficient reflection) may be justified. In general terms, the interference with freedom of contract should be the minimum that will solve the problem while providing the other party (e. g. the business seller) with sufficient guidance to be able to arrange its affairs efficiently. Similarly with contract terms: it must be asked whether it is necessary to make a particular term mandatory or whether a flexible test such as ‘fairness’ would suffice to protect the weaker party. A fairness test may allow certain terms to be used providing these are clearly brought home to the consumer or other party before the contract is made. The fairness test thus interferes less with the parties' freedom of contract than making a particular term mandatory would do. Usually it will be sufficient that a term is not binding on the aggrieved party if in the particular circumstances it is unfair. This leaves parties who are fully informed and dealing at arms' length free (when the term will normally be fair: see above) to arrange their affairs as they wish. However, sometimes it may be easier to have a simple rule rather than a standard that varies according to the circumstances of each case.