Category Archives: Unconscionability and Unfair Terms

‘Relationship as Product’

“One interesting way to look at human relationships is to distinguish between social/communal norms on the one hand, and market/exchange norms, on the other. For instance, if a friend invites you over for dinner, you will probably express your gratitude by giving them a kiss or a hug. You would not offer them payment in […]

‘No judicial fine-tuning of the scope of UCTD: CJEU departs from AG’s opinion in Banca Transilvania

“Earlier this month we reported on the interpretation of Directive 93/13/EEC on unfair contract terms (UCTD) proposed by the Advocate General Kokott in case C-81/19 Banca Transilvania. The questions referred in the case concerned, firstly, the exclusion from the scope of the UCTD of terms reflecting mandatory statutory provisions in Article 1(2) and, secondly, the […]

‘The floor is lava – CJEU further on floor clauses in Ibercaja Banco (C-452/18)’

“Last week the CJEU has also provided us with the judgment in the Ibercaja Banco case (C-452/18) regarding a possibility of novation of a consumer credit contract containing possibly unfair terms, namely floor clauses. We have already explained in details the facts of the case and the AG Saugmandsgaard Øe’s opinion, thus here we will […]

‘Instagram’s Terms of Service and Sublicense Rights’

“Do Instagram’s terms of service permit third parties to distribute photographs posted to users public account even when the user has expressly denied such permission? That was an issue addressed by Sinclair v Ziff Davis, LLC and Mashable, Inc back in April. The plaintiff, Stephanie Sinclair, a professional photographer, owned the copyright to a photograph […]

Eliza Varney, ‘Agency contracts and the scope of the incapacity defence in English contract law: a topic too hot to handle?’

INTRODUCTION The common law position regarding the validity of a contract where one party lacked the mental capacity to understand the nature of the transaction, outlined by the Court of Exchequer in Molton v Camroux (Molton) and reinforced by the Court of Appeal in Imperial Loan v Stone (Imperial Loan), considers such a contract to […]

‘Abuse of Contract and the July 2020 Bar Exam’

“This summer, the Kansas Board of Law Examiners (KBE) is demanding that all examinees sign a statement that they have ‘voluntarily’ assumed COVID-related risks before they sit for the July 2020 bar examination …” (more) [Andrea Boyack, NULR Of Note, 15 July]

Sinéad Agnew, Review of Sanctity of Contracts in a Secular Age: Equity, Fairness and Enrichment by Stephen Waddams

Stephen Waddams, Sanctity of Contracts in a Secular Age: Equity, Fairness and Enrichment, Cambridge: Cambridge University Press, 2019, 235 pp, hb £85.00. This book reinvigorates the debate about the place of substantive fairness in contract law. Its central argument is that it is time we recognised a general judicial power to relieve against highly unreasonable […]

Martijn Hesselink, ‘The Right to Justification of Contract’

ABSTRACT This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential […]

Lauren Henry Scholz, ‘Fiduciary Boilerplate’

ABSTRACT The result of applying general contract principles to consumer boilerplate has been a mass transfer of unrestricted rights to use and sell personal information from consumers to companies. This has enriched companies and enhanced their ability to manipulate consumers. It has also contributed to the modern data insecurity crisis. Consumer transactions should create fiduciary […]

Rebecca Zietlow, ‘The New Peonage: Liberty and Precarity for Workers in the Gig Economy’

ABSTRACT According to a 2016 Time Magazine article, over 14 million people currently work in the ‘gig’, ‘on demand’, or ‘sharing’ economy. In the past 10 years, 94% of net new jobs have appeared outside of traditional employment. The gig economy presents a paradox for workers in the United States. On its face, the ‘gig’ […]