Category Archives: Unconscionability and Unfair Terms

Åsbjørn Melkevik, ‘Can We Meaningfully Talk About Just Prices?’

ABSTRACT Contracting parties are the best judges of their own interests. So goes the usual story found in the classical liberal literature. Within a classical liberal framework, we are told, prices are not determined by any particular individual, but are rather the result of the many market interactions of autonomous agents. To impose a just […]

Frank Fagan, ‘Waiving Good Faith: A Natural Language Processing Approach’

ABSTRACT In Northwest, Inc v Ginsberg, the Supreme Court recognized that some states impose contractual good faith performance obligations and others do not. States that impose the duty are said to deploy the doctrine to ensure that contractual partners adhere to community standards of decency, fairness, and reasonableness. By contrast, states that let the parties […]

Robert Scott, ‘The Paradox of Contracting in Markets’

ABSTRACT Contract design that motivates parties to invest and trade more efficiently occurs primarily in thin markets characterized by bespoke, bilateral agreements between commercial parties. In that environment, the cost of producing each contract is relatively high. Those costs are justified by offsetting design improvements in contractual incentives. In contrast, more efficient production of contract […]

Brian McCall, ‘Demystifying Unconscionability: An Historical and Empirical Analysis’

ABSTRACT … This article will thus attempt to dispel the following three myths about unconscionability: It is a new, modern doctrine of law; Its application is unpredictable and arbitrary; To prevail a party must prove both procedural and substantive unconscionability. The best way to dispel myths is through facts. This article attempts to clear the […]

Maher and Puttick, ‘Reconsidering Independent Advice: A Framework for Analysing Two-Party and Three-Party Cases’

ABSTRACT What is the significance of the receipt of independent advice by the plaintiff in a claim to set aside a transaction on the basis of a vitiating factor – such as duress, undue influence or unconscionable conduct? The generally held view has been that it is highly significant. Indeed, the receipt of advice has […]

Tess Wilkinson‐Ryan, ‘Justifying Bad Deals’

ABSTRACT In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers – even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal […]

Yifat Nahmias, ‘The Cost Of Coercion: Is There A Place For “Hard” Interventions In Copyright Law?’

ABSTRACT The contractual relationship between author and intermediary – be it a producer, publisher, or anyone facilitating the commercial exploitation of the author’s copyrighted works – is often viewed as an unequal one. Other than a minority of superstars, the vast majority of authors are forced to accept contractual terms dictated by their powerful counterparties. […]

Van Der Westhuizen and Evans, ‘ACL Unfair Contract Terms and Standard Construction Contracts’

ABSTRACT The unfair contract terms (UCT) provisions in the Australian Consumer Law (ACL) have radically affected the common law rights and obligations of parties using ‘standard form’ contracts in Australia. The provisions could be described as the most significant reform to the consumer law framework in Australia since the introduction of the Trade Practices Act […]

‘Hidden In Plain Sight and In All-Caps’

Yonathan A Arbel and Andrew Toler, All-Caps (January 15, 2020), available at SSRN. A strange thing has been happening in the world of consumer contracts. ‘Contract’ is being elbowed – roughly – aside by ‘notice’. While contract requires offer, acceptance, mutual assent and consideration, notice seems to require only conspicuousness. Accordingly, it is important that […]

Arbel and Toler, ‘All-Caps’

ABSTRACT A hallmark of consumer contracts is long blocks of capitalized text. Courts and legislators believe that such ‘all-caps’ clauses improve the quality of consumer consent and thus they will often require the capitalization of certain key terms in consumer contracts. Some of the most important terms in consumer contracts – warranty disclaimers, liability releases, […]