Category Archives: Unconscionability

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, […]

Dennis Patterson, ‘Rethinking Duress’

Abstract: John Hyman makes a good case for the proposition that duress defeases what would otherwise be a voluntary act. In this article, I consider Hyman’s arguments in the context of economic duress and conclude that while Hyman makes an excellent case for the proposition that duress vitiates voluntariness, there may be cases where the […]

Erin Canino, ‘The Electronic “Sign-in-Wrap” Contract: Issues of Notice and Assent, the Average Internet User Standard, and Unconscionability’

Introduction: … Part I of this Note will provide the relevant history of electronic contracts of adhesion, including a brief overview of the law with regard to various kinds of electronic contracts. In addition, this section will address the recent cases that involve the type of hybrid contracts Judge Weinstein reviewed. These cases contain fundamental […]

Gerrit De Geest, ‘Signing Without Reading’

Abstract: Most people sign standard term contracts without reading them. This gives drafters an incentive to insert one-sided, inefficient terms. This problem can be solved directly by giving the drafter a duty to draft efficient terms, or indirectly by giving the signer a duty to read (which may remove the incentive to insert one-sided terms […]