D. 16.1.2.3. and modern law: Cunning Woman and Cunning Consumer

A search for the limits of consumer protection is probably one of the most important issues of contemporary private law. However, the questions that we are asking ourselves today are not entirely new, since modern jurisprudence – misguided by the false laissez-faire image of Roman law created by the 19th century scholars – tends to forget about the numerous Roman legal sources concerning the need to protect the weaker party. As Roman law was not systematized and even hostile to defi nitions, this protection was never put into any theoretical scheme and based on case-by-case method, characteristic for the classical jurisprudence. Therefore, despite the existence of certain standards of protection of such parties as minors, women or peasants, the rightness of application of the protective measures was always decided ad casum. One Roman case, discussed by Ulpianus (D.16.1.2.3) would be presented to back this thesis. The relevance of the Roman experience could also be proven by presentation of many contemporary cases in which the courts are trying to decide whether the strict standards of consumer protection should always be applied to the same degree. In the modern legal systems however, the existence of precise defi nitions of the customer simply does not allow courts to deny the protection to a physical person who – in certain circumstances – seem not to be the weaker party. Therefore the decision making process often refers to both general principles (like the prohibition of the abuse of rights) and specifi c provisions, especially those concerning information duties of the seller at the pre-contractual stage. One recent bank credit case from the jurisprudence of Polish courts would be discussed and the reasoning of the court would be compared to the arguments of Ulpianus to show the timelessness of the latter.