46 Protecting the vulnerable

Many of the qualifications on freedom of contract mentioned above can also be explained as rules designed to protect the vulnerable. Here we consider some other examples. Within the DCFR the main example of this aspect of justice is the special protection afforded to consumers. This appears prominently in the rules on marketing and pre-contractual duties in Book II, Chapter 3; on the right of withdrawal in Book II, Chapter 5; and on unfair contract terms in Book II, Chapter 9, Section 4. It also appears prominently in the parts of Book IV dealing with sale, the lease of goods and personal security.1. Often the protection takes the form of recommending that, in a contract between a business and a consumer, it should not be possible for the parties to derogate from particular rules to the detriment of the consumer. Most of the consumer protection rules in the DCFR come from the acquis. They are, in substance if not in actual wording, part of EU law and of the laws of Member States and seem likely to remain so. The ‘consumer’ is defined as ‘any natural person who is acting primarily for purposes which are not related to his or her trade, business or profession’.2. Whether the notion of the consumer is necessarily the best way of identifying those in need of special protection is a question which has been raised and will no doubt be raised again. Some argue that small businesses or ‘non-repeat players’ of any kind may be equally in need of protection. However this question may be answered in the future, the point remains that the protection of those in a weak or vulnerable position can be considered an aspect of the underlying principle of justice within the DCFR. Another example in the DCFR is that some of the rules on contracts for the provision of treatment services (medical and other) afford special protection to patients.3. And yet other examples are the protections afforded to the debtor when a right to performance is assigned4. and the protections afforded to non-professional providers of personal security.5. Both are in an inherently exposed position. People presented with standard terms prepared by the other party are also in a vulnerable position in practice, whether or not they are consumers, and there are rules in the DCFR to protect them.6. Of a rather similar nature is the rule that in cases of doubt an ambiguous term which has not been individually negotiated will be interpreted against the person who supplied it.7.