chapter  12
19 Pages

The regulation of unfair terms in non- professional suretyship agreements: lessons for the wider European Union harmonisation agenda

ByJAMES DEVENNEY, MEL KENNY

This chapter is located in the context of European Union (EU) initiatives aimed at creating a single market in financial services1 and the increasingly voluminous debate on the future of European private law.2 The aim of the chapter is to reflect on wider EU regulation and harmonisation initiatives in this area3 by using contracts of suretyship/guarantee as a case study. In so doing it will focus on situations where the surety/guarantor acts in a non-professional capacity (for example, a family member). The chapter will highlight the polycontextual nature of suretyship transactions and will explore the (largely procedural) protection afforded to a nonprofessional surety in England and Wales. It will note different approaches to suretyship protection across the EU (the ‘uncommon’ core)4 and it will explore the desirability of applying the Unfair Terms in Consumer Contracts Directive5 to such transactions. The chapter will argue that if EU harmonisation of the law relating to non-professional suretyships is deemed desirable, a dual-track EU harmonisation strategy – involving measures of legislative and non-legislative

atic areas, such as non-professional suretyship agreements, it is possible to further illuminate the wider current debate on the future of aspects of European private law and, further, the challenges inherent in the harmonisation of any area of transnational commercial law.