Category Archives: Unconscionability and Unfair Terms

Adar and Becher, ‘Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts’

ABSTRACT This Article calls for a conceptual shift toward the scrutiny of exploitative consumer standard form contracts. Current approaches to consumer standard form contracts assume that imbalanced and unfair terms can be adequately challenged by aggrieved consumers and effectively scrutinized by vigilant courts. Some even believe that market forces and reputational constraints can deter firms […]

‘More Reasonable Notice’

“(This post is a continuation of yesterday’s post on ‘Reasonable Notice’) The second case reflecting the evolving understanding of reasonable notice is Kauders v Uber Technologies. The plaintiffs sued Uber in Massachusetts Superior Court alleging that three Uber drivers refused to provide one of the plaintiffs, Christopher Kauders, with a ride because he was blind […]

‘Evolving Meaning of Reasonable Notice’

“A few weeks ago, I blogged about Hansen v Ticketmaster, a case that IMHO did contract law wrong by taking an unrealistic approach to what constitutes unreasonable notice. I noted that this case seemed to be on the wrong side of a trend which reallocates the burden that wrap contracts places upon the parties. Law […]

Liew and Yu, ‘The Unconscionable Bargains Doctrine in England and Australia: Cousins or Siblings?’

ABSTRACT In discussions concerning the modern equitable unconscionable bargains doctrine, judges and commentators often draw seamlessly from English and Australian law as though they are siblings from the same family. In reality, their doctrinal elements are substantively and substantially different, and these reflect three core points. First, English and Australian law respectively imposes a negative […]

Ying Khai Liew ‘“Unconscionability” and the Case Against Lumping: Three Case Studies’

ABSTRACT This paper argues that unconscionability provides no good basis for arguments in favour of lumping equitable doctrines in English law. It explores three areas of equity where unconscionability has most strongly divided lumpers and splitters: undue influence and unconscionable bargains; proprietary estoppel and constructive trusts; and the ‘rule in Re Rose’ and the decision […]

Buccafusco, Hemel and Talley, ‘Price Gouging in a Pandemic’

ABSTRACT The ongoing COVID-19 pandemic has led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it has reawakened a debate about whether and how to regulate ‘price gouging’. Animating this controversy is a longstanding conflict between laissez-faire economics (which champions price fluctuations as […]

Preston Torbert, ‘“Because It is Wrong”: An Essay on the Immorality and Illegality of the Online Service Contracts of Google and Facebook’

ABSTRACT This essay argues that the behavioral-advertising business model under which an internet platform, such as Google or Facebook, provides free services in exchange for the user’s personal data is immoral and illegal. It is immoral because it relies on addiction, surveillance, and manipulation of the user to deplete the user’s autonomy. The contract between […]

Francesco Paolo Patti, ‘Personalized Unfair Terms Control: EU Law Meets Innovative US Doctrines’

ABSTRACT According to part of the US scholarship, the use of big data and prediction algorithms could entail a paradigmatic change in contract law: No longer would one have general and abstract legal norms, but rather granular and personalized ones, customized on the needs and features of the contracting parties. This shift to a law […]

‘The Law Applicable to Cross-border Contracts involving Weaker Parties in EU Private International Law’

“Maria Campo Comba just published a book titled: ‘The Law Applicable to Cross-border Contracts involving Weaker Parties in EU Private International Law’ with Springer. The abstract reads as follows: ‘This book provides answers to the following questions: how do traditional principles of private international law relate to the requirements of the internal market for the […]

Bourova, Ramsay and Ali, ‘A “Damaging Loophole” “Long Overdue” for Closing: Extending Consumer Protections Against Unfair Contract Terms to insurance’

ABSTRACT As part of the Australian Consumer Law reforms of 2010, unfair contract terms protections were implemented nationwide across most sectors that use standard form contracts in their dealings with consumers, including financial services. However, until recently, these protections did not apply to general insurance contracts covered by the Insurance Contracts Act 1984 (Cth). Consumer […]