Category Archives: Unconscionability and Unfair Terms

Radosveta Vassileva, ‘On the Diverging Conceptions of Fairness in English and Bulgarian Contract Law: The Peculiar Transformation(s) of Roman Causa’

ABSTRACT This paper examines the distinct roles, which the Roman doctrine of ‘causa’ acquired in English and Bulgarian contract law, to challenge popular beliefs entertained by common law and comparative scholars and to demonstrate the peculiar mechanisms through which the conception of fairness in contract law evolves. While leading contemporary English scholars argue that the […]

‘Fine Print Subservience’

Meirav Furth-Matzkin and Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud, 72 Stanford Law Review (forthcoming 2020), available at SSRN. Sellers entice consumers to make purchases by advertising many lovely benefits of their products. It is quite common, however, to then qualify and narrow these marketing promises in the fine print terms […]

‘Commission guidance note on Unfair Terms Directive’

“The European Commission adopted today a guidance note on unfair contract terms. It is intended to ensure that consumer associations and legal practitioners, including judges, will be better equipped to protect EU consumers from unfair contract terms. The guidance note is based on the case law of the EU Court of Justice on Directive 93/13 […]

Meirav Furth-Matzkin, ‘The Harmful Effects of Unenforceable Contract Terms: Experimental Evidence’

ABSTRACT Increased public awareness that sellers routinely insert one-sided or exploitative terms into their boilerplates has resulted in growing pressure throughout the world for broader substantive regulation of consumer contracts. However, recent evidence suggesting that sellers and landlords routinely contravene these regulatory measures by inserting unenforceable terms into their contracts casts doubt on the effectiveness […]

‘Can a parent sign away a child’s rights by signing a waiver of liability? Not in Kentucky (and many other states)’

“Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times! Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a ‘waiver’ before the child can be allowed to do […]

Cheong and Ding, ‘From Unconscionability to Unfairness: A Critique of Hong Kong’s Unconscionable Contracts Ordinance with Australian Developments’

ABSTRACT Hong Kong courts have read into its Unconscionable Contracts Ordinance the general doctrine of unconscionability requiring supplier’s identification and knowing exploitation of consumer weakness, making the Ordinance unsuitable for consumer protection. This has resulted in an approach straddling the unconscionability doctrine and the more intuitive ‘unfairness’-based concepts in unfair terms legislation. Through a comparative […]

‘AWPLN: Third post for 2019: publications’

“We have been informed of the following relevant publications over the last two months (with a book by Michelle Sharpe that I missed last year): …” (more) [Australian Women’s Private Law Network, 2 July]

Ewan McKendrick, ‘Doctrine and Discretion in the Law of Contract Revisited’

ABSTRACT Professor Sir Guenter Treitel has been one of the most influential scholars in the recent history of English contract law. This article revisits his inaugural lecture at the University of Oxford in which he discerned a movement from doctrine to discretion in the English law of contract. It concludes, by reference to issues considered […]

Australian Securities and Investments Commission v Kobelt

“A majority of the High Court has dismissed an appeal from the Full Court of the Federal Court of Australia, rejecting the proposition that the respondent’s provision of ‘book-up’ credit to a remote indigenous community was unconscionable conduct in connection with financial services pursuant to s 12CB(1) of the Australian Securities and Investments Commission Act […]

‘Little Clicks, Big Consequences’

Brett Frischmann and Evan Selinger, Re-Engineering Humanity (2018). The unique qualities of digital contracts – weightless, easily duplicable – have made them ubiquitous and much longer than their paper counterparts. Consequently, they are everywhere and accordingly, nobody reads them. Yet, courts have consistently argued that digital or ‘wrap’ contracts (shrinkwrap, clickwrap, browsewrap, etc) are just […]