Category Archives: Unconscionability

Brooke Murphy, ‘Neurodivergent women in “clouded judgment” unconscionability cases – an intersectional feminist perspective’

Abstract Feminist legal scholars have discussed the impact of gender and class stereotypes on the judgments in Louth v Diprose. However, a significant aspect of Ms Louth’s identity is missing from these discussions: her neurodivergence (or mental illness). This article analyses the stereotypical treatment of women through the lenses of gender and neurodivergence in ‘clouded […]

C Scott Pryor, ‘Revisiting Unconscionability: Reciprocity and Justice’

Abstract This is a working chapter for the Christianity and the Law series published by Cambridge University Press. Written at an introductory level, it aims to demonstrate that the contract law doctrine of unconscionability finds its warrant in the virtues of reciprocity and justice. These virtues came to be part of the Western tradition of […]

‘Airbnb to unroll the transparency carpet for its users’

“Whilst the Court of Justice was keeping us busy this month, it is worth it to mention that Airbnb finally committed to adjusting its T&Cs in accordance with EU law (‘Airbnb commits to complying with European Commission and EU consumer authorities’ demands’). This follows the earlier action of the CPC Network and of the Commission […]

‘National courts are not obliged to review unfair practices during mortgage enforcement proceedings – CJEU in Bankia

“On 19th September 2018, the ECJ issued its ruling on the Bankia case (Case C‑109/17). The case concerned the application of the Unfair Commercial Practices Directive in mortgage enforcement proceedings and gave the Court the opportunity to comment on the different mechanisms used by the Unfair Commercial Practices Directive and the Unfair Contract Terms Directive […]

Xuyu Hu, ‘Equality of bargaining power in contracts for international liner shipping’

Abstract Mandatory rules exist in contracts for international liner shipping primarily because of imbalances and non-equity in the allocation of contract responsibilities. The superior bargaining position owned by the carriers depends largely upon liner market monopoly levels, the supply and demand balance between the shipper and carrier, and the cargo volume size of the shippers. […]

‘Effectiveness of the U[nfair] C[ontract] T[erms] D[irective] revisited (once again): CJEU rules on Profi Credit Polska

“Earlier this year we reported on the opinion of the Advocate-General Kokott in case C-176/17 Profi Credit Polska. Today the Court of Justice delivered its judgment on the case, largely relying on the AG’s submission. By describing which elements of the Polish ‘fast track’ procedure for the enforcement of promissory notes were not compatible with […]

Hao Jiang, ‘Substantive Unfairness as Unconscionable’

Abstract Contrary to the conventional view that the doctrine of unconscionability requires procedural defects and is based on bargaining inequality, this paper argues that, in principle, substantive unconscionability alone shall be sufficient to constitute unconscionability and so vitiate a contract. It is also my contention that Aristotelian idea of contract of exchange as an act […]

Becher, Feldman and Lobel, ‘Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans’

Abstract Consumers in general, and poor consumers in particular, often make counter-productive financial decisions that undermine their welfare. One key example is that poor people frequently use high-cost credit and loans with onerous interest rates. They are also disproportionally engaged in other types of sub-optimal borrowing, such as rent-to-own transactions and insufficient savings for the […]

Welmans and Naughton, ‘The “Interest” Based Penalty Tests in Paciocco and Cavendish/Parkingeye and the Law of Penalties and Damages in Australia and the United Kingdom’

Abstract This article maps the current penalty tests in Australia and the United Kingdom following recent revision. It demonstrates how this revision has relaxed the relationship between sums recoverable under liquidated damages clauses and damages recoverable at law for breach of contract. This article acknowledges that the relaxation of that relationship makes liquidated damages clauses […]

‘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, […]