We can not find any argument in current law reform discussion concerning a notion of the average consumers both the Consumer Contract Law and the Specific Trading Practices Law.
Average consumer
In the process of enactment of the Consumer Contract Law 2000, however, the influential major business association, the Federation of Economic Business Associations, demanded to insert the notion of the average consumer instead of consumer wording in the law. According to the association, the notion of consumer should be clarified in consumer-business transaction to be able to perspective; therefore the notion of consumer should be limited to the entity that formed contract with the business. The average consumer should be defined as an average natural person who is attentive and can make his contract reasonably.[1] Eventually, the proposal was not reflected not only in the CCA, but also in the Specific Trade Practice Law.
Phase of advertisement
The general information requirement is based on the general consumers except the concrete consumer. It is necessary to take account of notion of the general consumer in whether the advertisement or description is considered unfair or not. Although we can not find the wording of the “average consumer” precisely, the same wording of “general consumer” is used in the truth-in-advertising laws (sec.4) for instance. The meaning of the general consumer seems as same as the notion of the average consumer. The STPA is control to the general information duty and advertisement. Probably, the act uses the consumer as the meaning of the average consumer concerning advertisement restriction, if the STPA should be interpreted coherent with the truth-in-advertising law.
Phase of face-to-face transaction
However, in the face-to-face transaction phase, traders are able to take account to the consumer’s particularity in personal including vulnerability: knowledge, capability, intention, experience and the status of finance. Whether the particular practice is misleading or agressive or not is affected by the personal particularity, in addition to the nature of goods or services. In this situation, it is not efficient for a busness to take account of the average consumer.
The notion of vulnerable conusmer and the suitability rule
EC unfair commercial practices directive modifies the average consumer standard where a clearly identifiable group are particularly vulnerable by virtue of their mental or physical infirmity, age or credulity. But we have not the vulnerable consumer. Instead our several laws introduce the notion of the suitability rule. In EU countries, that concept only is itroduced in securities or investment law. In
Japan, the idea has been growing in consumer law: the fundamental consumer law, doorstep selling regulation and some investiment laws. It seems that the suitability rule plays a similar role as the notion of vulnerable consumer, but it is unclear.
[1] http://www.keidanren.or.jp/japanese/policy/pol217.html
