The clause ‘as is where is’ in a sales contract and the application of the mandated-choice model
In sales contracts, legal practitioners often encounter the clause ‘as is where is’ (tel quel). Nonetheless, under EU mandatory law a consumer who buys, for example, a used car cannot waive her rights deriving from an eventual defectiveness of the car (repair, substitution, rescission, or damages); in other words, she cannot buy the car ‘as is where is’ in order to pay a lower price. Under a mandated-choice scheme, though, the buyer of a used car would have the right to choose between a contract with consumer protection at a higher price—that is, an insurance premium—and a contract without such protection at a lower price. This possibility would enhance the buyer’s freedom of choice, advance the interests of lower-income consumers, and eliminate the socially unjust phenomenon of cross-subsidization—which is an often underappreciated flip side of the extended EU legal paternalism.