Category Archives: Unconscionability and Unfair Terms
Susan Bright, ‘Escalating Ground Rents in Residential Leases and Consumer Protection’
ABSTRACT Escalating ground rents in long residential leases (rents that double or are adjusted by reference to an index at regular intervals) have been described as onerous and can prevent property sales. This article considers whether they are legally enforceable under consumer protection legislation. Although litigation would be needed both to clarify the application of […]
‘Recreation and Risk: The Book, The Website, The Links to Liability Waivers’
From time to time, liability waivers and exculpatory agreements have been a topic for the Blog. There was plenty of interest in the subject in connection with the OceanGate disaster in 2023. We also weighed in on the subject in connection with McKamey Manor. Last year, William Gordon Childs published Recreation and Risk, which provides […]
Wayne Barnes, ‘Defending Form Contract Consent’
ABSTRACT The issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing […]
Bar-Gill, Ben-Shahar and Marotta-Wurgler, ‘A Companion Guide to the Restatement of Consumer Contracts’
ABSTRACT This short Essay, written by the Reporters of the recently published Restatement of Consumer Contracts, is intended as a companion to the Restatement. It highlights three areas, where the Reporters’ ambition was only partially reflected in the final version of the Restatement. The first was to ground the restated rules and principles in a […]
Eleanor Rowan, ‘Economic abuse, the bank, and the devil in the detail: One Savings Bank plc v Catherine Waller-Edwards [2024] EWCA Civ 302′
EXTRACT In One Savings Bank plc v Catherine Waller-Edwards, the Court of Appeal considered – for the first time – whether banks are put on constructive notice to potential undue influence in joint benefit remortgage/suretyship hybrid transactions. At a time where there is an increasing awareness of economic abuse as a form of domestic abuse, […]
‘Debunking the Market-Based Myths of Boilerplate’
Andrea Boyack, ‘Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights’, 110 Iowa Law Review 497 (2025). Andrea Boyack’s article, ‘Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights’, examines ‘problematic’ provisions in consumer contracts and may be viewed as a companion piece to her previous article, ‘The Shape of Consumer Contracts’ which is more […]
Jinxian Chen, ‘Laesio Enormis: Origin and Historical Evolution’
ABSTRACT The rule of laesio enormis allows the disadvantaged party to circumvent the constraints of a legal transaction when being exploited by the other party, serving as a crucial legal device of private law justice. Originating in late antiquity, laesio enormis was initially implemented as a special intervention to protect vulnerable land sellers. In the […]
Marie Reilly, ‘The Unconscionably Short Warranty’
ABSTRACT A typical consumer product warranty covers products for defects that appear before the warranty period expires. If the manufacturer warrants a vehicle for 5 years or 60,000 miles, whichever occurs first, problems that require repairs after the warranty period expires are outside the warranty and therefore the buyer’s problem. Advocates for consumer buyers have […]
Stephen Ware, ‘Contracting Away Constitutional Rights in the United States: Adhesive Consent (Blanket Assent) to Arbitration and other Agreements’
ABSTRACT Law in the United States provides a constitutional right to a jury trial not only in criminal cases but also in many civil cases. However, parties often unknowingly trade away their civil jury rights in so-called ‘adhesion’ contracts the form contracts businesses present on a take-it-or-leave-it basis to consumers, workers, and others who typically […]
‘What if Producers Paid Us to Read Fine Print?’
Kelli Alces Williams, ‘Market Testing Boilerplate’, 74 Syracuse Law Review 229 (2024). One of my favorite cases from the perspective of consumer bargaining power is Boucher v Riner, which involved both my third-greatest physical fear (jumping out of a perfectly good flying airplane a few thousand feet above the ground) and my first-greatest jurisprudential concept […]