Category Archives: Unconscionability and Unfair 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 […]

Rakoff and Rakoff, ‘Arbitration, “Pseudo-Contract”, and Objective Theory’

INTRODUCTION … Fundamentally, Kar and Radin rest their argument on two propositions. First, normatively in contract law ‘the central focus of justification is on the enforcement of common terms that parties agree to when they form contracts’. Second, creation of this shared meaning in turn ‘depends on an implicit presupposition of cooperative language use to […]

Lawrence Solum, ‘Contractual Communication’

INTRODUCTION … In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and […]

Klass and Ayres, ‘One-Legged Contracting’

INTRODUCTION … Part I of this Response criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. Part II argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be […]

Paul Davies, ‘Bad Bargains’

ABSTRACT It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man’s bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors […]

John Enman-Beech, ‘Unconscionable Inaccess to Justice’

ABSTRACT Unconscionability can and should be used in appropriate cases to ensure access to justice for contracting parties in Canada. In this comment, I articulate a test for the application of unconscionability to what I call access clauses – clauses such as arbitration clauses and forum selection clauses that affect how a contracting party can […]

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 […]