Category Archives: Unconscionability

Enrico Baffi, ‘Consumer Protection Against Unconscionable Clauses: American Doctrines, Italian Law’

Abstract: Conventional wisdom holds that with the laws protecting consumers against unconscionable provisions in their contractual relationships with professionals, the European Legislator intended to level the playing field between parties to a contract. This article intends to show that the European Legislator’s intent was actually to resolve the problem of an inefficient ‘race to the […]

Alexander Loke, ‘Excusable consent in duress’

Abstract: While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, […]

Dennis Patterson, ‘Rethinking Duress’

Abstract: John Hyman makes a good case for the proposition that duress defeases what would otherwise be a voluntary act. In this article, I consider Hyman’s arguments in the context of economic duress and conclude that while Hyman makes an excellent case for the proposition that duress vitiates voluntariness, there may be cases where the […]

Erin Canino, ‘The Electronic “Sign-in-Wrap” Contract: Issues of Notice and Assent, the Average Internet User Standard, and Unconscionability’

Introduction: … Part I of this Note will provide the relevant history of electronic contracts of adhesion, including a brief overview of the law with regard to various kinds of electronic contracts. In addition, this section will address the recent cases that involve the type of hybrid contracts Judge Weinstein reviewed. These cases contain fundamental […]

Gerrit De Geest, ‘Signing Without Reading’

Abstract: Most people sign standard term contracts without reading them. This gives drafters an incentive to insert one-sided, inefficient terms. This problem can be solved directly by giving the drafter a duty to draft efficient terms, or indirectly by giving the signer a duty to read (which may remove the incentive to insert one-sided terms […]

Brian Sloan, ‘Reversing Testamentary Dispositions in Favour of Informal Carers’

Abstract: This chapter begins by considering the context of testamentary gifts for informal carers and the range of possible challenges to them. It then focuses on the appropriateness and the efficacy of the testamentary undue influence doctrine as a means of reversing testamentary dispositions in favour of informal carers. In particular, it considers the relevance […]

Nicolas Cornell, ‘A Complainant‐Oriented Approach to Unconscionability and Contract Law’

Abstract: This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an […]

Parker Smith, ‘Coping with the Death of the Bargain Without Burying the Spirit of the Law: A “Foundational” Approach to Comparative Law and Its Application to Adhesion Contracts in Louisiana’

Introduction: … Part I of this Comment illustrates the first step in the foundational approach, which is to identify and articulate the nature of a ‘legal problem’. This Part argues that the proliferation of adhesion contracts results in the death of the bargain in consumer contracts and strips away significant evidentiary and theoretical justifications for […]

David Blankfein-Tabachnick, ‘Property, Duress, and Consensual Relationships’

Abstract: Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and the freedoms of association and expression. Speech Matters is in line with Shiffrin’s signature move: we ought to reform our social practices […]

‘The new UK law on penalty clauses and European private law’

“Recent decisions by the UK Supreme Court on penalty clauses are of some interest from the point of view of European private law. The decisions were in the conjoined cases of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Limited v Beavis [2015] UKSC 67. They have been admirably discussed by Martin Hogg […]