Category Archives: Unconscionability and Unfair Terms

Jeffrey Hewlett, ‘Unconscionability as a Judicial Means for Curing the Healthcare Crisis’

INTRODUCTION …. This Note will explore courts’ reluctance to utilize unconscionability in medical billing contexts, despite its otherwise seemingly natural fit. It is this Note’s primary contention that unconscionability should apply toward medical billing of uninsured patients. Furthermore, it is this Note’s contention that the ‘uniqueness of the healthcare market’ has caused a rift between […]

May Fong Cheong, ‘Contractual Fairness: Statutory Innovation and Statutory Interpretation’

ABSTRACT This chapter considers statutory innovation and statutory interpretation in two pieces of Australian legislation: the unfair contract terms law in the Australian Consumer Law, and unjust contracts under the Contracts Review Act 1980 (NSW). These provisions raise the challenge to interpret statutes which seek to give content to indeterminate value of fairness and justice. […]

‘Consumers and businesses in digital markets – An unequal relationship?’

“On 15 October, the Swedish Consumer Agency, its Scientific Council and Maastricht University (in particular the Law and Tech Lab) hosted the webinar ‘Consumers and businesses in digital markets – An unequal relationship?’, focused on bringing together the perspectives of national consumer authorities, consumer organizations, businesses and supranational law-makers on the challenges and opportunities of […]

‘Duty to Disclose What’s Hidden in the Fine Print’

“TL;DR version: If you want to enforce a provision that isn’t obviously part of the transaction (such as an arbitration clause), you should expressly draw it to the consumer’s attention, explain it to them, and then have them sign it. Isaac Sutton agreed to purchase a 2016 Chevy Silverado on credit from David Stanley Chevrolet […]

‘Heeding the Call of Those Harmed by Contractual Incapacity’

Sean M Scott, Contractual Incapacity and the Americans with Disabilities Act, 124 Dickinson Law Review 253 (2020) Inherent in contractual defenses such as infancy and mental incapacity is the goal of protection. In the case of infancy, contract law seeks to protect underage minors from themselves and from opportunistic adults who may attempt to take […]

Richard Carlson, ‘Policies, Disclaimers, and Unintegrated Contracts After McAllen Hospitals v Lopez

ABSTRACT Can a party declare that its own documents are inadmissible as evidence to prove a contract? Would such a declaration be binding on the other party, and on the judiciary? In Midland Hospitals v Lopez, the Supreme Court of Texas suggested that the answer to this question is ‘yes’, at least if the declaration […]

Tom Mozingo, ‘Revisiting the Enforceability of Online Contracts: The Need for Unambiguous Assent to Inconspicuous Terms’

ABSTRACT In determining the enforceability of online contracts, namely those formed from the use of smartphone applications, courts typically look to whether the contract terms were reasonably conspicuous or communicated to the consumer. With the rise of ‘browse-wrap’ contracts, where terms are not directly communicated to the consumer or where the consumer is not required […]

‘Two Sources for Lucy v Zehmer

“Otto Stockmeyer posted a comment with a link to his post on Lucy v Zehmer. We give it a bit more prominence by re-posting it here. For another take on the case, we recommend this episode of the Promises, Promises podcast. I said I would recommend this podcast to my students, and now I can […]

Jonathan Harris, ‘Unconscionability in Contracting for Worker Training’

ABSTRACT Despite urgent calls for retraining and upskilling workers amidst the threat automation poses to many existing jobs, a forty-year-long reduction in public and private worker training programs means that some firms offer training only with contractual strings attached. This Article exposes the dangers of these conditional training contracts and proposes the law of unconscionability […]

Uber v Heller: An “Agreement Not to Arbitrate” Is Unconscionable’

“Much has been written over the past weeks about the Supreme Court of Canada decision in Uber v Heller, one of the most anticipated decisions of the year – at least in arbitration and employment law circles. I won’t go into a detailed analysis of the decision in the face of much more learned comments. […]