Category Archives: Unconscionability and Unfair Terms
‘That Time I Tried To Reject the Arbitration Clause in a Contract to Buy A Car’
Since there’s absolutely nothing of interest happening in the business world these days, I figure it’s a good time to tell the story of how I tried to reject an arbitration clause when buying a car. It was 2013, and I’d just moved to Durham, North Carolina to become a Visiting Assistant Professor at Duke. […]
Gizem Alper, ‘Contract law revisited: Algorithmic pricing and the notion of contractual fairness’
ABSTRACT Contracts have been an essential part of our lives for centuries, and it is only natural that they would be affected by the inflation of technology surrounding us. With the big data revolution in the market, algorithmic pricing schemes have been introduced, which provides a price for a good and/or service according to the […]
Raghavan, ‘Consumer Law’s Equity Gap’
ABSTRACT This Article is about the views that shape and constrain the development of consumer law. Consider the market for short-term, highcost loans. Policymakers tend to justify intervening in these markets on inefficiency grounds (consumers exhibit present bias) and rarely on equitable grounds (these loans cost too much). Why? One recent explanation suggests that policymakers […]
Symposium on Martijn Hesselink, Justifying Contract in Europe (Netherlands Journal of Legal Philosophy)
The Radical Aspirations of Justifying Contract in Europe (Mirthe Jiwa and Lyn KL Tjon Soei Len) How Radical is the Understanding of Democracy in Justifying Contract in Europe? (Christina Eckes) Pluralism as Inability to Choose (Giacomo Tagiuri) Justifying Racial and Gendered Contract in Europe (Lyn KL Tjon Soei Len) Reasoning Towards Utopia (Gareth Davies) Searching […]
MacQueen and Bogle, ‘Private Autonomy and the Protection of the Weaker Party: A Historical Perspective’
ABSTRACT This paper examines, from a historical perspective, the relationship between the law of contract in European legal systems and the political principle of autonomy. It surveys critical developments within contract law in the early modern period, paying particular attention to how the Scots jurist, James Dalrymple, Viscount Stair, offered a distinctive account – for […]
‘Of Schrödinger’s contract and ambiguous terms: when a website mistakenly lists designer trainers for €10, do their ambiguous terms and conditions apply?’
‘In the famous thought experiment proposed by Erwin Schrödinger, a hypothetical cat in a box may be considered simultaneously to be both alive and dead as a result of its fate being linked to a random subatomic event that may or may not have occurred. For reasons that will become obvious a little later in […]
Hylton, ‘Waivers’
ABSTRACT Waiver contracts are agreements in which one party promises not to sue the other for injuries that occur during their contractual relationship. Waivers are controversial in the consumer context, especially when presented in standard form, take-it-or-leave-it contracts. The law on waivers appears muddled, with no consistent doctrine or policy among the courts on enforceability. […]
Cooney and Sanderson, ‘Illegitimate Pressure in the Law of Duress’
ABSTRACT This article considers the element of illegitimate pressure in a finding that a transaction is vitiated by duress. A difficult question within the law of obligations concerns when pressure comprising a threat of lawful action is nonetheless illegitimate. We argue that there are four factors relevant to the legitimacy of otherwise lawful pressure. In […]
Branford and Gardner, ‘Reconceiving wrongdoing in lawful act duress’
INTRODUCTION The actions of Pakistan International Airline Corporation (PIAC) in forcing a small family-owned company to waive its rights to £1.2 million of validly earned commission have highlighted the difficulties that contract law faces when responding to inequality of bargaining power and exploitation. They have also thrown lawful act duress back into the judicial and […]
Ridge, ‘Equitable undue influence and religion’
INTRODUCTION An educated woman in her mid-thirties joined a religious community and made vows of poverty, obedience to the community’s leader and chastity. To fulfil her vow of poverty, she gave her assets to the leader on trust for the community’s purposes. She did not receive independent advice before doing this. The leader did not […]