ABSTRACT
Of course, this is not to say that the regime fully achieves maximal welfarism. A major limitation on achieving maximal welfarism is the exclusion of price terms from the review of fairness. Without such control traders are free to increase prices in response to controls over the ancillary terms.4 Of course, as we have seen, there may still be control over prices by market forces; and this will be most likely in the case of price terms that genuinely reflect what the consumer reasonably expected to pay and that are clearly presented. Such terms reflect one of the core issues upon which purchasing decisions are based. As such, if (on all other counts) there are the conditions for a working market, there is some prospect of these terms being disciplined by market forces.5 So, by only excluding from the test of fairness terms that genuinely reflect what the consumer reasonably expected to pay and that are clearly presented, there is a contribution to the maximally welfarist agenda. However, this breaks down if the market is, for whatever reason, not working properly. In these circumstances the lack of a direct control over price means that the regime is not full-bloodedly maximally welfarist.
