Category Archives: Unconscionability

Adam Walton, ‘Accessory liability in equity: the case for unconscionability’

Abstract An article examining whether, amidst the huge transformation accessory liability has undergone over the past 25 years, dishonesty has been correctly identified as the touchstone of liability. Tracing the development, doctrinal underpinnings, and how the law is applied in practice, this article makes the case that unconscionability, not dishonesty, is the most appropriate touchstone […]

Mark Pawlowski, ‘Undue Influence: Towards A Unifying Concept Of Unconscionability?’

Abstract The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After […]

Nelson Enonchong, ‘The Modern English Doctrine of Unconscionability’

Abstract This paper argues that the uncertainty that once plagued the English doctrine of unconscionability has given way to certainty and predictability, as the criteria for relief formulated in Alec Lobb Garages Ltd v Total Oil (Great Britain) Ltd has prevailed over the competing criteria identified in Fry v Lane as restated in Cresswell v […]

‘AG Bobek in Pouvin C-590/17: the scope of the UCTD should be interpreted broadly’

“A recent request for preliminary ruling C-590/17 Pouvin v Electricité de France from the French Cour de Cassation raised interesting and so far unexplored questions about the applicability of the 1993/13/EC Unfair Contract Terms Directive (UCTD) on contracts concluded between employers and employees that are connected to but does not fall within the employers main […]

‘Who Should Decide Whether the Parties Formed a Valid Agreement to Arbitrate?’

David Horton, Arbitration About Arbitration, 70 Stanford Law Review 363 (2018). David Horton’s ‘Arbitration About Arbitration’ is a thorough and insightful treatment, with both normative and descriptive elements, of the law’s approach to delegation clauses in contracts calling for arbitration. Delegation clauses assign to arbitrators the question of the validity of an agreement to arbitrate […]

Maker, Paterson, Arstein-Kerslake and McSherry, ‘From safety nets to support networks: Beyond “vulnerability” in protection for consumers with cognitive disabilities’

Abstract This article considers the significance of the obligations in the ‘United Nations Convention on the Rights of Persons with Disabilities’ (‘CRPD’) for consumer protection law and policy. The current legal response to consumers who require additional decision-making support is primarily focused on mechanisms to release consumers classified as ‘vulnerable’ from transactions tainted by concerns […]

Brooke Murphy, ‘Neurodivergent women in “clouded judgment” unconscionability cases – an intersectional feminist perspective’

Abstract Feminist legal scholars have discussed the impact of gender and class stereotypes on the judgments in Louth v Diprose. However, a significant aspect of Ms Louth’s identity is missing from these discussions: her neurodivergence (or mental illness). This article analyses the stereotypical treatment of women through the lenses of gender and neurodivergence in ‘clouded […]

C Scott Pryor, ‘Revisiting Unconscionability: Reciprocity and Justice’

Abstract This is a working chapter for the Christianity and the Law series published by Cambridge University Press. Written at an introductory level, it aims to demonstrate that the contract law doctrine of unconscionability finds its warrant in the virtues of reciprocity and justice. These virtues came to be part of the Western tradition of […]

‘Airbnb to unroll the transparency carpet for its users’

“Whilst the Court of Justice was keeping us busy this month, it is worth it to mention that Airbnb finally committed to adjusting its T&Cs in accordance with EU law (‘Airbnb commits to complying with European Commission and EU consumer authorities’ demands’). This follows the earlier action of the CPC Network and of the Commission […]

‘National courts are not obliged to review unfair practices during mortgage enforcement proceedings – CJEU in Bankia

“On 19th September 2018, the ECJ issued its ruling on the Bankia case (Case C‑109/17). The case concerned the application of the Unfair Commercial Practices Directive in mortgage enforcement proceedings and gave the Court the opportunity to comment on the different mechanisms used by the Unfair Commercial Practices Directive and the Unfair Contract Terms Directive […]