PhD defence: Nudging in contract law as a means of protecting weaker parties

When protecting weaker parties, such as consumers, contract law usually does not adequately take into account how these parties make decisions in reality. Therefore, weaker parties are insufficiently protected, which harms their autonomy. Potentially, nudging offers a solution to this problem as it influences decisions based on behavioral insights about human decision-making behavior. Yet no systematic research exists on the precise potential and boundaries of nudging for the protection of weaker parties.

This doctoral thesis answers the question of how nudging can contribute to the protection of weaker parties in Dutch contract law. To that end, it translates legal, behavioral, and philosophical insights into specific applications of nudging. It argues that, although nudging’s scope of application is not unlimited, it can be applied in several ways to protect weaker parties. The topics of the case studies that illustrate this conclusion are: financial institutions’ special duty of care when offering complex financial products, private sureties, and add-on insurances. This research is relevant not only to everyone who deals with legislation concerning the protection of weaker parties, but also to those who deal with the application of behavioral insights in contract law and with the tension between autonomy, protection, and freedom of contract.