Category Archives: Unconscionability

Anne-Lise Sibony, ‘European Unfairness and American Unconscionability: A Letter from A European Lawyer to American Friends’

ABSTRACT The Unfair Contract Terms Directive (UCTD) and the Common Law doctrine of unconscionability in the United States both pursue the same aim: they seek to protect consumers against abuse of power by traders who are in a position to exploit the asymmetry of the contracting process. However, both sets of rules rest on different […]

‘Our Unconscionable Contract Casebooks’

Jacob Hale Russell, Unconscionability’s Greatly Exaggerated Death, 53 UC Davis Law Review (forthcoming), available on SSRN. Jacob Russell has a bone to pick with the contract professoriate, who have consigned unconscionability to a backwater in our courses, trotted out today only in 9th circuit cases that excoriate arbitration clauses before being consigned to an inevitable […]

Simon Whittaker, ‘Unfair Terms in Commercial Contracts and the Two Laws of Competition: French Law and English Law Contrasted’

ABSTRACT The laws controlling the fairness of the terms of non-consumer contracts in French and in English law have recently grown much further apart. French law has introduced two new general sets of controls modeled on the European consumer law test: the first in the Commercial Code governing all ‘commercial contracts’ and forming part of […]

‘UCTD applicable to other than employment contracts concluded between employees and employers – CJEU in Pouvin (C-590/17)’

“The CJEU supported today the AG Bobek’s opinion in the case Pouvin (C-590/17) that the notion of consumers and sellers from the Unfair Contract Terms Directive should be interpreted broadly. This means that also employees (and their spouses) who are acquiring a loan from their employers should be seen as consumers when these loans are […]

Andrew Gold, ‘Equity and the Right to Do Wrong’

ABSTRACT On some views, equity prevents people from being sticklers for their rights in a bad way. This perspective has merit, but it offers an incomplete picture. Often, individuals get to insist on their legal rights even when it is immoral or undesirable for them to do so. The interesting question then is why equity […]

‘Drowning in a Bucket: Nonrecourse Loans for Litigants’

Ronen Avraham and Anthony Sebok, An Empirical Investigation of Third Party Consumer Litigant Funding, 104 Cornell Law Review (forthcoming), available at SSRN. Contracting parties often suffer from information problems, lack of expertise, and limited cognitive abilities. They sometimes make decisions under stressful conditions. There are always others happy to exploit these phenomena to make extra […]

Gordley and Jiang, ‘Fairness and the Law of Contract’

ABSTRACT Relief is given for severely unfair contracts, and yet there is no generally accepted explanation of what makes a contract unfair. Neither is there a generally accepted explanation of why contracts should be enforced. The explanation popular in the 19th century was that contracts should be enforced because the parties expressed their will to […]

AG Opinion on Orange Polska: Signing a contract with the courier present can be undue influence under UCPD

“On 30 January 2019, the AG opinion on case C-628/17 Orange Polska has been published. This is a case of great significance as it is the first one clarifying the meaning of aggressive practices and especially undue influence under the Unfair Commercial Practices Directive (UCPD). In the last year there has been a growing interest […]

Rick Bigwood, ‘The Undue Influence of “Non-Australian” Undue Influence Law on Australian Undue Influence Law: Farewell Johnson v Buttress? Part I’

ABSTRACT The judgments of the plurality and Gordon J in the recent High Court decision of Thorne v Kennedy have undoubtedly altered the prior law relating to undue influence in Australia. But the most significant alterations, which are twofold, are both unacknowledged and unsupported by justificatory reasons. First, undue influence is presented as a single […]

Jacob Russell, ‘Unconscionability’s Greatly Exaggerated Death’

ABSTRACT Reports of unconscionability’s demise are greatly exaggerated. According to conventional wisdom, the common-law contracts doctrine is rarely used, except in limiting clauses that purport to waive consumers’ remedial rights. In fact, as this Article documents, the doctrine is quietly flourishing: courts are using it to strike down substantive terms, including interest rates, in consumer […]