Category Archives: Unconscionability

Xuyu Hu, ‘Equality of bargaining power in contracts for international liner shipping’

Abstract Mandatory rules exist in contracts for international liner shipping primarily because of imbalances and non-equity in the allocation of contract responsibilities. The superior bargaining position owned by the carriers depends largely upon liner market monopoly levels, the supply and demand balance between the shipper and carrier, and the cargo volume size of the shippers. […]

‘Effectiveness of the U[nfair] C[ontract] T[erms] D[irective] revisited (once again): CJEU rules on Profi Credit Polska

“Earlier this year we reported on the opinion of the Advocate-General Kokott in case C-176/17 Profi Credit Polska. Today the Court of Justice delivered its judgment on the case, largely relying on the AG’s submission. By describing which elements of the Polish ‘fast track’ procedure for the enforcement of promissory notes were not compatible with […]

Hao Jiang, ‘Substantive Unfairness as Unconscionable’

Abstract Contrary to the conventional view that the doctrine of unconscionability requires procedural defects and is based on bargaining inequality, this paper argues that, in principle, substantive unconscionability alone shall be sufficient to constitute unconscionability and so vitiate a contract. It is also my contention that Aristotelian idea of contract of exchange as an act […]

Becher, Feldman and Lobel, ‘Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans’

Abstract Consumers in general, and poor consumers in particular, often make counter-productive financial decisions that undermine their welfare. One key example is that poor people frequently use high-cost credit and loans with onerous interest rates. They are also disproportionally engaged in other types of sub-optimal borrowing, such as rent-to-own transactions and insufficient savings for the […]

Welmans and Naughton, ‘The “Interest” Based Penalty Tests in Paciocco and Cavendish/Parkingeye and the Law of Penalties and Damages in Australia and the United Kingdom’

Abstract This article maps the current penalty tests in Australia and the United Kingdom following recent revision. It demonstrates how this revision has relaxed the relationship between sums recoverable under liquidated damages clauses and damages recoverable at law for breach of contract. This article acknowledges that the relaxation of that relationship makes liquidated damages clauses […]

‘Double default: on default interest and default rules’

“Tuesday 7 August 2018, the last date on the judicial calendar of the CJEU before summer recess, was a busy day. Two of the cases on the dock in which the CJEU gave judgment concerned preliminary references from Spain: Joined Cases C-96/16 and C-94/97 (Escobedo Cortés), discussed earlier on this blog. The judgment relates to, […]

Hofri-Winogradow and Kaplan, ‘Property Transfers to Caregivers: A Comparative Analysis’

Introduction … In this Article, we examine approaches taken to property transfers to caregivers in US federal law, several US states, Israel, and the UK. We review the advantages and disadvantages of the principal mechanisms for compensating family caregivers: testamentary bequests by care recipients, an explicit salary paid by care recipients, public benefits payable to […]

Ewan McGaughey, ‘Is Unequal Bargaining Power an Unjust Factor?’

Abstract National Westminster Bank plc v Morgan said there is no general doctrine of ‘inequality of bargaining power’ in English law, because statute was the appropriate tool to place ‘restrictions upon freedom of contract’. But if there is no general doctrine, could unequal bargaining power be an unjust factor in specific contracts, to cancel unfair […]

Giesela Ruhl, ‘The Unfairness of Choice-of-Law Clauses, Or: The (Unclear) Relationship of Art 6 Rome I Regulation and the Unfair Terms in Consumer Contracts Directive’

Abstract Online-shopping is an integral part of modern life. More than ever before consumers buy goods over the internet rather than going to their local retail store. The by far most popular and most successful online-shop is Amazon, an American company that sells basically everything from books and DVDs to baby and beauty products to […]

Katy Barnett, ‘Thorne v Kennedy: A Thorn in the Side of “Binding Financial Agreements”?’

Abstract A discussion of the High Court of Australia’s recent decision in Thorne v Kennedy with reference to the three vitiating factors discussed by the High Court: duress, undue influence and unconscionable conduct. It is suggested that the High Court left unclear the status of lawful act duress, and the overlap between duress and actual […]