Category Archives: Unconscionability

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 […]

Brian Sloan, ‘Reversing Testamentary Dispositions in Favour of Informal Carers’

Abstract: This chapter begins by considering the context of testamentary gifts for informal carers and the range of possible challenges to them. It then focuses on the appropriateness and the efficacy of the testamentary undue influence doctrine as a means of reversing testamentary dispositions in favour of informal carers. In particular, it considers the relevance […]

Nicolas Cornell, ‘A Complainant‐Oriented Approach to Unconscionability and Contract Law’

Abstract: This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an […]

Parker Smith, ‘Coping with the Death of the Bargain Without Burying the Spirit of the Law: A “Foundational” Approach to Comparative Law and Its Application to Adhesion Contracts in Louisiana’

Introduction: … Part I of this Comment illustrates the first step in the foundational approach, which is to identify and articulate the nature of a ‘legal problem’. This Part argues that the proliferation of adhesion contracts results in the death of the bargain in consumer contracts and strips away significant evidentiary and theoretical justifications for […]

David Blankfein-Tabachnick, ‘Property, Duress, and Consensual Relationships’

Abstract: Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and the freedoms of association and expression. Speech Matters is in line with Shiffrin’s signature move: we ought to reform our social practices […]

‘The new UK law on penalty clauses and European private law’

“Recent decisions by the UK Supreme Court on penalty clauses are of some interest from the point of view of European private law. The decisions were in the conjoined cases of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Limited v Beavis [2015] UKSC 67. They have been admirably discussed by Martin Hogg […]

Thomas Simmons, ‘Testamentary Incapacity, Undue Influence and Insane Delusions’

Abstract: Testamentary incapacity, undue influence, and insane delusions are recurring doctrines in the context of an impaired, weakened, or confused individual leaving a will, the validity of which comes under question. In In re Estate of Berg (SD 2010), the South Dakota Supreme Court held that an individual possessed testamentary capacity even where he suffered […]

Oluwadamilola Odetola, ‘Penalties and Liquidated Damages in a Changing World: Rethinking the Common Law Position’

Abstract: Why did Antonio agree to give Shylock a pound of his flesh in the Merchant of Venice? Why was Shylock unable to get his pound of flesh? Parties to a contract are allowed to determine their obligations but cannot freely determine the consequences of breach in the event of non-performance. Such is the paradox […]

Robert Flannigan, ‘Presumed Undue Influence: The False Partition from Fiduciary Accountability’

Abstract: The law of fiduciary accountability has one function. It is designed to control the opportunism that compromises our limited access arrangements. That function has been consistently articulated in the law reports for centuries. Unfortunately the clarity of the law has faded in important respects as a result of misinformed and misconceived judicial analysis. The […]

‘Is it Fair to Sell Your Soul?’

Marco Loos and Joasia Luzak, Wanted: A Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers (Centre for the Study of European Contract Law, Working Paper No 2015-01, 2015), available at SSRN. The reliance of online service providers on lengthy terms of service or related documents is easily mocked. When I teach […]