Category Archives: Unconscionability

CSECL Summer School 2018: ‘Private Law and Vulnerability’, University of Amsterdam, 2-5 July 2018

“The 2018 CSECL International Summer School will provide a cross-disciplinary exploration of the relationships between vulnerability and private law. The focus will be on private law both as a cause of and as a (possible) solution to the problem of vulnerability. The vulnerability of particular groups and individuals, in particular in relation to growing power […]

PG Turner, ‘Lex Sequitur Equitatem: Fusion and the Penalty Doctrine’

Abstract Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law […]

‘“You Are Asking Me About Reading Things I Never Had to Read ”: Consumer Contracting in Historical Context’

Anne Fleming, The Rise and Fall of Unconscionability as the ‘Law of the Poor’, 102 Georgetown Law Journal 1383 (2014). Who is best suited to police unfair terms – the market, the judiciary, or the legislature? Williams vs Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian […]

Guido Smorto, ‘Protecting the Weaker Parties in the Platform Economy’

Abstract Known by many names – platform, sharing, peer-to-peer (p2p), collaborative economy, and so on – entirely new business models have emerged in recent years, whereby online platforms use digital technologies to connect distinct groups of users in order to facilitate transactions for the exchange of assets and services. This dramatic shift in business organisation […]

Just Published: Irina Domurath, Consumer Vulnerability and Welfare in Mortgage Contracts

This book advocates a new way of thinking about mortgage contracts. This claim is based on the assumption that we currently live in a political economy in which consumer debt fulfils a social function. In the field of housing this is evidenced by the expansion of mortgage credit through which consumers are to purchase residential […]

‘The Structural Injustice of Private Debt’

“Debt-financing is increasingly common. It used to be the case that people would occasionally need loans during the course of their lives, perhaps to buy a car or a house. These were exceptional cases, outside the normal conditions of life. In most instances, people would rely on savings to cover their consumer costs, or go […]

‘Thorn in the Side of Prenuptial Agreements? Thorne v Kennedy

“In Thorne v Kennedy, the High Court unanimously struck down both a prenuptial and a postnuptial agreement (the plurality on the basis of undue influence and unconscionable conduct, and Nettle J and Gordon J on the basis of unconscionable conduct alone). The agreements had been entered into by a impoverished 36-year-old woman from overseas (known […]

Kar and Radin, ‘Pseudo-Contract and Shared Meaning Analysis’

Abstract Over the last several decades, courts have struggled with when to enforce boilerplate text as contract. An example is the copious digital text that consumers receive links to before clicking ‘I agree’ to a purchase. Everyone knows that recipients rarely read this boilerplate text and would not understand it if they did. Still, given […]

Thorne v Kennedy

“The High Court has allowed an appeal against a decision of the Full Family Court on the enforceability of binding financial agreements before and after marriage. Pt VIIIA of the Family Law Act 1975 (Cth) allows parties to a marriage to enter into binding financial agreements before or after a marriage to clarify their respective […]

Melanie Fellowes, ‘Commercial surrogacy in India: The presumption of adaptive preference formation, the possibility of autonomy and the persistence of exploitation’

Abstract India’s proposed 2016 Bill on the regulation of surrogacy is its latest attempt to respond to criticism regarding the lack of protection given to those entering into a commercial surrogacy arrangement. Adaptive preference theorists presume that a decision made in an oppressive environment, which is inconsistent with the woman’s well-being, is not autonomous and […]