Category Archives: Unconscionability

‘Double default: on default interest and default rules’

“Tuesday 7 August 2018, the last date on the judicial calendar of the CJEU before summer recess, was a busy day. Two of the cases on the dock in which the CJEU gave judgment concerned preliminary references from Spain: Joined Cases C-96/16 and C-94/97 (Escobedo Cortés), discussed earlier on this blog. The judgment relates to, […]

Hofri-Winogradow and Kaplan, ‘Property Transfers to Caregivers: A Comparative Analysis’

Introduction … In this Article, we examine approaches taken to property transfers to caregivers in US federal law, several US states, Israel, and the UK. We review the advantages and disadvantages of the principal mechanisms for compensating family caregivers: testamentary bequests by care recipients, an explicit salary paid by care recipients, public benefits payable to […]

Ewan McGaughey, ‘Is Unequal Bargaining Power an Unjust Factor?’

Abstract National Westminster Bank plc v Morgan said there is no general doctrine of ‘inequality of bargaining power’ in English law, because statute was the appropriate tool to place ‘restrictions upon freedom of contract’. But if there is no general doctrine, could unequal bargaining power be an unjust factor in specific contracts, to cancel unfair […]

Giesela Ruhl, ‘The Unfairness of Choice-of-Law Clauses, Or: The (Unclear) Relationship of Art 6 Rome I Regulation and the Unfair Terms in Consumer Contracts Directive’

Abstract Online-shopping is an integral part of modern life. More than ever before consumers buy goods over the internet rather than going to their local retail store. The by far most popular and most successful online-shop is Amazon, an American company that sells basically everything from books and DVDs to baby and beauty products to […]

Katy Barnett, ‘Thorne v Kennedy: A Thorn in the Side of “Binding Financial Agreements”?’

Abstract A discussion of the High Court of Australia’s recent decision in Thorne v Kennedy with reference to the three vitiating factors discussed by the High Court: duress, undue influence and unconscionable conduct. It is suggested that the High Court left unclear the status of lawful act duress, and the overlap between duress and actual […]

Paul Skowron, ‘The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales’

Abstract Judges in England and Wales tell three apparently contradictory stories about the relationship between autonomy and mental capacity. Sometimes, capacity is autonomy’s gatekeeper: those with capacity are autonomous, but those without capacity are not. Sometimes, capacity is necessary for autonomy but insufficient; for voluntariness, freedom from undue external influences is also required. Finally, sometimes […]

Matthew Marinett, ‘Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract’

Abstract This article puts forward a unifying principle for the exceptions to contractual enforcement, including unconscionability, undue influence, duress, and mistake. In coming to a unified analysis, this article explains and defends three general premises. First, contract law should be understood as operating to maximize societal welfare in the aggregate. Second, contractual enforcement encourages and […]

Renata Grossi, ‘Love as a Disadvantage in Law’

Abstract Love is not often the explicit subject of legal discussion but when it is, it appears as a negative phenomenon that leads us to make bad decisions. This view of love is amplified in the context of commercial and economic transactions, where love, intimacy, and economic exchange are seen as operating under opposing principles. […]

Michael Oswalt, ‘The Content of Coercion’

Abstract This article is about a new approach to one of the law’s most basic questions: what is coercion? Under its traditional framing, coercion is about transactions. One person makes an offer to another person, who, under the circumstances, has no realistic option but to say ‘yes’. But that conception has not helped courts articulate […]

‘Why Trump Likely Won’t Collect the $20 Million He Claims Stormy Daniels Owes Him – Five law professors weigh in’

“For the past couple of months, salacious details about the alleged decade-old dalliances between Donald Trump and adult film performer Stormy Daniels have slowly dripped out …” (more) [Jennifer Taub, Slate, 20 March]