Category Archives: Unconscionability

‘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 […]

Matthew Marinett, ‘Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract’

Abstract Despite the existence of a near consensus on most of the specifics of common law contract law, there remains a great deal of uncertainty about how doctrines of contractual fairness are to be applied to excuse a party from a contract, and no clear justificatory principle has been found to explain them. This article […]

Enrico Baffi, ‘Consumer Protections Against Unconscionable Clauses: American Doctrines, Italian Law’

Abstract Conventional wisdom holds that with the laws protecting consumers against harsh provisions in their contractual relationships with professionals, the European Legislator intended to level the playing field between parties to a contract. This article intends to show that the European Legislator’s intent was actually to resolve the problem of an inefficient ‘race to the […]

Koffi Dogbevi, ‘Limitation of Liability in Adhesion Contract: A Comparative Analysis between the French Theory of “Failure of Essential Obligation” and the US Theory of “Failure of the Essential Purpose”’

Abstract: This paper aims to shed light on the French and U.S. doctrines of ‘failure of essential obligation’ and ‘failure of essential purpose’, and discuss how Courts use them to resolve issues arising from limitation of remedies clauses. The research will compare scholars and courts positions in the United States to the standards adopted in […]

Charles Calleros, ‘US Unconscionability and Article 1171 of the New French Civil Code: Achieving Balance in Statutory Regulation and Judicial Intervention’

Abstract: In 2016, France adopted the first comprehensive revision of the French Law of Obligations since it appeared in the Napoleonic Code in 1804. New article 1171 of the Code authorizes judges to strike out auxiliary terms in an adhesion contract that create a significant imbalance in the rights and obligations, inviting a comparison with […]

Enrico Baffi, ‘Consumer Protection Against Unconscionable Clauses: American Doctrines, Italian Law’

Abstract: Conventional wisdom holds that with the laws protecting consumers against unconscionable provisions in their contractual relationships with professionals, the European Legislator intended to level the playing field between parties to a contract. This article intends to show that the European Legislator’s intent was actually to resolve the problem of an inefficient ‘race to the […]

Alexander Loke, ‘Excusable consent in duress’

Abstract: While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, […]