Category Archives: Unconscionability and Unfair Terms

Brady Williams, ‘Unconscionability as a Sword: The Case for an Affirmative Cause of Action’

ABSTRACT Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a ‘shield’ and not a ‘sword’ […]

Ex officio unfairness assessment limited to contractual clauses connected to the dispute – Opinion of AG Tanchev in Case C‑511/17 Unicredit Bank Hungary

“On the 19th of December 2019, AG Tanchev delivered an Opinion on Case C-511/17, which deals with the scope of the obligation to assess the unfairness of contractual terms ex officio, under Directive 93/13/EEC (Unfair Terms Directive). As AG Tanchev starts by noting, this case is related to other cases on the Hungarian framework on […]

Warren Swain, ‘Without the Power to Drink or Contract’

ABSTRACT Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is […]

Hugh Collins, ‘Justice at Work’

ABSTRACT Theories of justice suitable for ordinary market transactions are not appropriate in the special context of work, because they must confront the challenges of the subordination of employees and the risk of commodification of workers by treating them like things or machines. It is argued that the legal protection of fundamental or human rights […]

Daniel Cook, ‘Walking the Divide: A Critical Examination of the Nature of Undue Influence and Unconscionable Dealing’

ABSTRACT This article affords a contextual, exploitation-based account of the doctrines of undue influence and unconscionable dealing in the law of contract. In contrast with the vast majority of literature on undue influence and unconscionable dealing, this article argues that substantive unfairness is neither a necessary nor sufficient condition for establishing either doctrine. Rather, it […]

Francesco Paolo Patti, ‘Unfair Terms Control in Business-to-Business Contracts’

ABSTRACT The aim of the paper is to outline the regulation of one-sided (or onerous) standard terms in business-to-business contracts according to Italian law, in the light of the specific legislative rules and existent case law. Differently than other European legal systems, Italian law does not provide for a substantive control of unfair standard terms […]

Benoliel and Becher, ‘The Duty to Read the Unreadable’

ABSTRACT The duty to read doctrine is a well-recognized building block of US contract law. This doctrine holds contracting parties responsible for the written terms of their contracts, whether or not they actually read them. The application of this duty is especially tricky in the context of consumer contracts, which consumers generally do not read. […]

Erik Encarnacion, ‘Boilerplate Indignity’

ABSTRACT Commentators have long tried to sound the alarm about boilerplate contracts, pointing out threats ranging from the loss of privacy rights to the erosion of public law and democratic self-governance. This Article argues that this list of concerns misses something important: that imposing certain boilerplate terms on individuals is incompatible with their dignity. After […]

Cofidis II: on ex officio and limitation periods – Opinion AG Kokott’

“Seventeen years ago, the CJEU gave judgment in Cofidis, one of the first and well-known cases on the ex officio application of EU consumer law. In short, the CJEU held that a limitation period of 2 years under French law, which prevented the court from examining (at its own motion or at the request of […]

Gregory Klass, ‘Boilerplate and Party Intent’

ABSTRACT It is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article […]