Category Archives: Unconscionability and Unfair Terms

‘Vast Scale Undue Influence’

Jamie Luguri and Lior Strahilevitz, ‘Shining a Light on Dark Patterns’, 13 Journal of Legal Analysis 43 (2021). Each time we browse the web, we are steered into making dubious contracts. A common example is digital platforms’ pressure that users click to ‘ACCEPT ALL COOKIES.’ Web designers not only make the ‘accept’ button the most […]

Yin and Naser, ‘The Intersection of the Rule in Yerkey v Jones and Contemporary Anti-Discrimination Law in Australia – Can the Special Wives’ Equity Survive?’

ABSTRACT The High Court in Yerkey v Jones considered the enforceability of a guarantee provided by a married woman to secure her husband’s debts. Dixon J said that although the relationship of husband and wife did not give rise to a presumption of undue influence, the law had never been divested completely of ‘the equitable […]

Hennemann and Lienemann, ‘The Data Act – Article-by-Article Synopsis of the Commission Proposal’

ABSTRACT This publication systematizes the European Commission’s Proposal for a Data Act. The text of the Proposal is presented in a structured form, along with the pertinent recitals and references to existing legislation. Where appropriate, the contents of the Proposal are outlined and briefly put into context. The resulting synopsis is meant to act as […]

Elizabeth Knuppel, ‘“A Mortgage on a Man’s Brain”: The Unconscionability of Overly Broad Intellectual Property Assignment Clauses in Employment Contracts’

ABSTRACT Employees in a wide range of fields, including engineering, science, and design, are required to sign intellectual property (IP) assignment agreements at the start of employment. These agreements assign IP generated by the employee to the employer. IP assignment agreements are often all-encompassing. The agreement may categorically claim all IP that the employee generates […]

‘Undue influence: presumption of undue influence where lender’s lawyer fails to properly advise borrower for whom it also acts’

“In Nature Resorts Ltd v First Citizens Bank Ltd ([2022] UKPC 10) Nature Resorts Ltd (‘NRL’) owned the Culloden Estate (‘the Estate’) in Tobago. It was accepted that Mr. Dankou was the sole shareholder and ‘controlling mind and will’ of NRL so that Mr Dankou and NRL could be treated as one and the same […]

Pilkington and Winterton, ‘The Possibility of Lawful Act Economic Duress: Pakistan International Airlines Corp v Times Travel (UK) Ltd

ABSTRACT The voidability of a contract procured by ‘economic duress’ is now well-established, but the precise boundaries of the doctrine remain contested. In Pakistan International Airlines Corp v Times Travel (UK) Ltd [2021] UKSC 40, the Supreme Court confronted the longstanding controversy as to whether a threat to perform a lawful act can provide grounds […]

Andrew Phang, ‘Penalty clauses and restraint of trade – a view from Singapore’

“The central governing principle in contract and commercial law is freedom of contract. Indeed, any exceptions (such as the operation of vitiating factors) will necessarily be limited in scope as well as effect – lest uncertainty (which is the bane of contract and commercial law) ensues. Regardless of many theoretical views eschewing the concept of […]

Loke and Sin, ‘Constructing Lawful Act Duress’

ABSTRACT The debate over whether the doctrine of lawful act duress exists has been settled in the affirmative by the UK Supreme Court in Times Travel (UK) Ltd v Pakistan International Airlines Corp. However, the elements by which one establishes lawful act duress was the subject of disagreement between by Lord Hodge (who delivered the […]

Milan Hulmák, ‘The Consequences of Unfair Terms in Consumer Contracts’

ABSTRACT Provided that a term in a consumer contract is unfair within the meaning of Article 3 (1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts we have to decide what consequences it means for the obligation. The directive only requires that such a term cannot have any effect for […]

Jens Dammann, ‘Contractual Symmetry: A Doctrinal and Economic Analysis’

ABSTRACT When discussing the fairness of boilerplate consumer contracts, courts often rely on the criterion of symmetry: whether a given contractual provision applies equally to both parties. In many states, boilerplate provisions that apply solely to the consumer but not to the merchant are much more likely to be judged unconscionable than provisions creating identical […]