Category Archives: Unconscionability and Unfair Terms

‘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 […]

‘We Read 150 Privacy Policies. They Were an Incomprehensible Disaster.’

“In the background here are several privacy policies from major tech and media platforms. Like most privacy policies, they’re verbose and full of legal jargon — and opaquely establish companies’ justifications for collecting and selling your data. The data market has become the engine of the internet, and these privacy policies we agree to but […]

Special Issue of European Review of Contract Law on the ALI Restatement on Consumer Contract Law from a European Perspective

The American Law Institute’s Restatement of Consumer Contracts: Reporters’ Introduction (Oren Bar-Gill, Omri Ben-Shahar and Florencia Marotta-Wurgler) Incorporation of Standard Contract Terms on Websites (Hans Schulte-Nölke) Business First. A Comment on the Adoption of Standard Terms under the American Restatement of the Law Consumer Contracts from a European Union Perspective (Jacobien Rutgers) A Modern Standard […]

Rita Matulionyte, ‘Empowering Authors via Fairer Copyright Contract Law’

ABSTRACT The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to […]

Peter Quon, ‘Case Comment: Heller v Uber Technologies Inc

ABSTRACT In Heller v Uber Technologies Inc, the Ontario Court of Appeal held that the arbitration clause contained in the agreement between Uber and its drivers was invalid on two separate grounds. First, the clause amounted to an illegal contracting out of the Employment Standards Act. Second, the Court held that the clause was unconscionable. […]

‘Intransparency of transparency case law? CJEU in C-38/17 GT v HS

“Last Wednesday the Court of Justice delivered a judgment in case C-38/17 GT v HS. On the face of it, the case seems like just another dispute concerning a credit agreement with potentially intransparent terms, specifically terms defining the applicable exchange rate for the loan denominated in foreign currency. On a closer look, a more […]

Gjendemsjø and Anchustegui, ‘The Scope for National Regulation of Unfair Trading Practices’

ABSTRACT Many European countries have some form of national regulation of unfair trading practices (‘UTPs’) in the business to business segment. These regulations are meant to prevent ‘big’ companies from treating ‘small’ companies unfairly by taking advantage of their gate keeper position and superior bargaining power. Some of these regulations are sector specific; the food […]

‘A consumer’s preference for invalidity? AG Pitruzzella on the consequences of unfairness under the UCTD’

“Last week, AG Pitruzzella submitted an interesting Opinion on unfair terms in case C-260/198 (Dziubak) (the English version of this opinion is not yet available). This case concerns a foreign currency-indexed loan undertaken by Polish consumers. The consumers claimed that the term establishing the conversion rate was unfair because it essentially allowed the bank to […]

‘AG Hogan in Kiss and CIB Bank (C-621/17) … not making transparency better’

“The questions on the application and effects of the prohibition of unfair contract terms in consumer credit contracts seem incessant. AG Hogan issued a long opinion today in the Hungarian case Kiss and CIB Bank (C-621/17). Mr Gyula Kiss concluded a credit agreement with three different rates stipulated in it: annual interest rate for the […]

Prince Saprai, ‘Promising Under Duress’

ABSTRACT In her chapter ‘Duress and Moral Progress’, Seana Shiffrin offers a novel perspective on coerced promises. According to the dominant view, these promises confer no right to performance on the coercer and do not create new reasons for the victim. Shiffrin accepts that these promises fail to confer rights, but disagrees that they never […]