Category Archives: Unconscionability

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 […]

Bourova, Ramsay and Ali, ‘“It’s easy to say ‘don’t sign anything'”: Debt problems among recent migrants from a non-English-speaking background’

ABSTRACT Legal protections are in place to allow Australians in financial hardship to avoid negative credit ratings and bankruptcy by negotiating alternative payment arrangements with creditors. This article draws upon focus groups with consumer advocates to investigate whether these protections are meeting the needs of recent migrants from a non-English-speaking background. The authors argue that […]

David Ellerman, ‘A Theory of Inalienability: Towards A Theory of Classical Liberal Jurisprudence’

Abstract Classical liberalism tends to respond to the criticism of any voluntary market contract by promoting a wider choice of options and increased information and bargaining power so that no one would seem to be ‘forced’ or ‘tricked’ into an ‘unconscionable’ contract. Hence, at first glance, the strict logic of the classical liberal free market […]

John Enman-Beech, ‘When Is a Contract Not a Contract?: Douez v Facebook Inc and Boilerplate’

ABSTRACT With Douez v Facebook Inc, the Supreme Court of Canada has started to digest the implications of standard form contracts, or boilerplate, in the on-line consumer market. In this case, four of a panel of seven judges ruled that a forum selection clause in Facebook’s ‘terms of use’ could not be enforced to stay […]

Tania and Yates, ‘Australian Securities and Investments Commission v Kobelt: Evaluating Statutory Unconscionability in the Cultural Context of an Indigenous Community’

ABSTRACT The concept of ‘unconscionable dealing’ in statutory consumer protection provisions, such as s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth), has been the subject of extensive consideration in the Federal Court of Australia and the superior courts of the states. The evaluative approach taken by the courts is emerging as […]

Adam Walton, ‘Accessory liability in equity: the case for unconscionability’

Abstract An article examining whether, amidst the huge transformation accessory liability has undergone over the past 25 years, dishonesty has been correctly identified as the touchstone of liability. Tracing the development, doctrinal underpinnings, and how the law is applied in practice, this article makes the case that unconscionability, not dishonesty, is the most appropriate touchstone […]

Mark Pawlowski, ‘Undue Influence: Towards A Unifying Concept Of Unconscionability?’

Abstract The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After […]