Category Archives: Unconscionability and Unfair Terms

Francesco Paolo Patti, ‘Personalization of the Law and Unfair Terms in Consumer Contracts’

ABSTRACT Unfair terms law as an area of consumer contract law becomes more and more important and, within the European context, new forms of enforcement are discussed in order to augment the level of effectiveness of consumer protection. Personalization of the law could have a significant impact on the way in which the unfairness control […]

‘Financial expertise does not preclude qualification as consumer – CJEU in Petruchová (C-208/18)’

“Yesterday, the CJEU issued a judgment in the case C-208/18 Jana Petruchová v FIBO Group Holdings Limited (the case has not yet been published in English; the link refers to the French version). The case concerns an individual contract for difference (CfD) concluded between the claimant and the defendant and, particularly, the definition of a […]

Renata Grossi, ‘The discomfort of Thorne v Kennedy: Law, love and money’

ABSTRACT The 2017 High Court case of Thorne v Kennedy highlighted and sparked discussion around the injustice of financial agreements and when they may constitute unconscionability and undue influence. However, the case also raises another important discussion about the relationship between love and money. This article picks up this conversation. How does society navigate the […]

Jeffrey Harrison, ‘Duress and Undue Influence in Contract Law as Cognitive Trespass: An Essay’

ABSTRACT Much of contract law concerns how to treat instances in which one party is vulnerable to advantage taking by another. The cases fall into two groups. In some the advantage-taker just happens upon the vulnerable party and has no part in creating that vulnerability. This has been labeled ‘pure advantage taking’. In other cases, […]

David McGowan, ‘Consumer Contracts and the Restatement Project’

ABSTRACT A recent controversy over the American Law Institute’s draft Restatement of the Law of Consumer Contracts (the ‘Draft’) raises four questions: (i) What is the state of basic contract principles such as formation or unconscionability with respect to consumer contracts; (ii) does the Draft get the existing law right; (iii) how much can contract […]

Zamir and Katz, ‘Substituting Invalid Contract Terms: Theory and Preliminary Empirical Findings’

ABSTRACT The law often lays down mandatory rules, from which the parties may deviate in favor of one party but not the other. Examples include the invalidation of high liquidated damages and the unenforceability of excessive non-compete clauses in employment contracts. In these cases, the law may substitute the invalid term with a moderate arrangement; […]

‘Unfairness assessment of variable interest rates – AG Szpunar in Gómez del Moral Guasch (C-125/18)’

“In 2001 M Gómez del Moral Guasch concluded a mortgage loan contract, with a variable interest rate, with a Spanish bank in order to purchase a residential apartment. In 2017 the consumer contested the fairness of a term in that contract that determines the mechanism of calculating the variable interest rate – based on the […]

‘Are Sign-in-Wrap Agreements Unreadable?’

Uri Benoliel and Shmuel I Becher, The Duty to Read the Unreadable, 60 Boston College Law Review (forthcoming, 2019), available at SSRN. Uri Benoliel and Shmuel I Belcher answer the question posited in the title to this review with an absolute yes. In a well-written, concise, and quite persuasive article, the authors test the readability […]

AWPLN: ‘Fourth post for 2019: publications and conferences’

“We have become aware of the following publications: Elise Bant and Jeannie Marie Paterson, ‘Exploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law’ (2019) 41(2) Sydney Law Review 155; …” (more) [Australian Women’s Private Law Network, 8 September]

‘Full harmonisation of consumer credit rules re-explained – judgment in C-331/18 Pohotovosť

“Last Thursday the Court of Justice delivered its judgment in C-331/18 Pohotovost’. The case forms part of the series of Slovak references concerning the interpretation of EU consumer law in the context of credit agreements. It is not to be mistaken with previous disputes involving the same creditor and focusing on Directive 93/13/EEC on unfair […]