DENMARK | MARIE JULL SØRENSEN AND KIM ØSTERGAARD 141 currently exists as a legal fiction. The literature has suggested using alternate terms such as the normal consumer or the typical consumer. Questions persist though, as to whether such alternative conceptual formulations are based on a corresponding legal fiction57. In any case, for now we must acknowledge the issue but place it beyond the scope of this article. Concerning the functional delimitation of consumer agreements, various consumer characteristics have been posited to be contrasted with those of the trader: the relatively low degree of professionalisation; the relatively modest economic strength; the lack of economies of scale; and (other missing) cost advantages58. A trader is supposed to act as a professional. This includes, among other things, necessary knowledge of their industry and the capacity to spread financial risk across several transactions — characterised as diversification from an economic sense, and pulverisation in a legal sense. The functional demarcation of the consumer concept implies that consumers act outside their profession, therefore it is assumed they have limited or perhaps no knowledge of the service or product type to be contracted. An obvious next step, naturally, is to note one of the assumptions on which the new institutional economic theory is based. Namely, that the individual actor is rationally limited and acts without pertinent information, which can be found in legal acts such as the Package Travel Directive. Intermediaries or any other contractual party may try to compensate for this via a set of disclosure requirements for the contractual basis, but cognitive constraints prevent the consumer from processing and translating all relevant information59. In relation to the current Danish case-law, cited above, the assessment of the court includes considerations about the performance creditor acting as a 57 Ibid with references. 58 MØGELVANG-HANSEN, P., Forbrugerrollen som retligt begreb, in Hyldestskrift til Jørgen Nørgaard, (1st ed., Jurist- Og Økonomforbundets Forlag 2003), p. 528. This is a rather early development regarding notions of what characterises a consumer. 59 In this sense, economic theory could contribute to qualifying the legal requirements to the contract in order to solve the problem of imperfect and asymmetric information between the parties. Thus, law and economics could contribute to qualifying the concept of the consumer. However, cognitive limitations attached to each individual cannot be solved, although the problem of imperfect and asymmetric information can to some extent be solved by applying extensive information requirements in the precontractual phase and to the content of the contract.
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