Category Archives: Unconscionability and Unfair Terms

‘New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest’

“In Matter of Falkowsky, the New York Supreme Court, Appellate Division, Second Department, ‘affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capacity and undue influence, and denied the admission of the will to probate’ …” (more) [Gerry W Beyer, Wills, Trusts and Estates Prof Blog, 24 […]

Marcus Moore, ‘The HMCS Unconscionability: adrift in the Atlantic – Uber Technologies v Heller 2020 SCC 16′

ABSTRACT This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court […]

‘Incorporating by reference? Be caring and as clear as the sky is blu’

“A cancellation clause in a signed mobile phone supply contract was considered unduly onerous and not fairly and reasonably drawn to the purchaser’s attention to be incorporated by reference. A mobile phone supplier, Blu-Sky, entered into a mobile phone supply contract with a social care provider, Be Caring, for the supply of 800 mobile phone […]

‘Non-liability clause signed by two commercial entities does limit damages in business dispute: SCC’

“Upholding the basic principle of freedom of contract between sophisticated commercial parties, the Supreme Court of Canada has ruled 9-0 that a ‘non-liability’ clause in a contract agreed to by two companies in Quebec does operate to limit liability in their business dispute, and is not negated by the doctrine of breach of a fundamental […]

Michael Ilg, ‘Contract Variation and Changed Expectations’

ABSTRACT The much-maligned rule in Stilk v Myrick, in which fresh consideration is required for a contract variation to be enforceable, is giving way across many common law jurisdictions. The purpose of this article is not to defend the doctrine of consideration from its critics, but rather to suggest that its replacement, the doctrine of […]

‘Ryanair, chargebacks, unfair terms, and lawful act duress’

“If you pay for a transaction by a debit or card, and there are problems with it, you may be entitled to a chargeback, which is ‘reversal of a disputed sales transaction on a credit or debit card. … The card provider will decide if you are entitled to a refund based on the circumstances […]

‘Asking for too much – default interest rate found to be unlawful penalty’

“In a case a rare example of a clause falling foul of the penalty rule, the High Court rejected a claim for default interest at the rate of 12% compounded monthly on the basis that it was an unlawful penalty …” (more) [Justin Tan, Allen and Overy – Compact Contract, 6 October]

Squid Game, Contracts and Consent’

“I’ve been a bit negligent in my blogging duties as I’ve been busy with the start of classes (I’m teaching Torts this semester, hence my use of the word ‘negligent’). So, when my daughter recommended that I watch Squid Game, I scoffed and self-importantly told her that I’m too busy to even post on the […]

‘The Exaggerated Rumors of the Death of Unconscionability’

Babette Boliek, ‘Upgrading Unconscionability: A Common Law Ally for a Digital World’, Maryland Law Review (forthcoming, 2021), available at SSRN. Professor Babette Boliek makes two important contributions in ‘Upgrading Unconscionability: A Common Law Ally for a Digital World’ before even reaching the article’s normative argument. First, the article challenges what has become a surprisingly prevalent […]

Francesco Delfini, ‘Unnegotiated Contracts of Adhesion in American Common and Civil Law Jurisdictions: The Canadian and Argentinian Cases’

ABSTRACT The essay addresses the control of Unnegotiated Standard Form Contracts and the legal tools developed for such purpose both in common and civil law traditions. In particular, on the one hand, it focuses on unconscionability, as it was originally crafted by the USA’s Uniform Commercial Code and recently shaped as a new doctrine by […]