Category Archives: Unconscionability and Unfair Terms
Sirko Harder, ‘The Territorial Scope of Australia’s Unfair Contract Terms Provisions’
ABSTRACT Section 23 of the Australian Consumer Law, which is sch 2 of the Competition and Consumer Act 2010 (Cth), invalidates unfair terms in particular types of contract. Section 5(1) of the Act extends the application of the Australian Consumer Law to conduct outside Australia by (among others) corporations carrying on business within Australia. In […]
Rabea Benhalim, ‘Oppression in American, Islamic, and Jewish Private Law’
ABSTRACT American, Islamic, and Jewish law all limit the enforcement of private law agreements in cases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within […]
Mark Leeming, ‘Unconscionable transactions – the roles of knowledge and “predatory state of mind”’
ABSTRACT This note on Nitopi v Nitopi [2022] NSWCA 162 considers the bases on which equity will intervene to set aside an unconscionable transaction, directing attention to the role of establishing knowledge by the donee of the special disadvantage and the notions of ‘victimisation’ and ‘predatory state of mind’. Leeming, Mark, Unconscionable transactions – the […]
‘District Court Enforces Hyundai’s Clickwrap Arbitration Clause Rolled Out in an Update’
John Tamburo sought to bring a class action against Hyundai Motor America Corporation (Hyundai) in connection with Blue Link and connected services. When he bought his Hyundai vehicle in 2017, Mr Tamburo agreed to certain terms and conditions relating to a Connected Services Agreement (CSA). According to those terms, Mr Tamburo agreed to the CSA […]
Michael Chatzipanagiotis, ‘Trying to Fit a Square Peg into a Round Hole: Individual Remedies for Unfair Commercial Practices Under Art 11a UCPD’
INTRODUCTION The The Unfair Commercial Practices Directive (UCPD), a full-harmonisation directive, is one of the most important sector-wide instruments of EU consumer-protection law. It aims at protecting the freedom of consumers to form a transactional decision. The Directive provides for a general definition of unfairness (Art 5) and special rules on the two most frequent […]
‘Disney, Contracts of Adhesion, and Arbitration-Clause Bootstrapping’
Disney is in the news this week, and not in a good way. For the truly awful facts of the case, you can’t do better than Emily Crane’s and Alexandra Steigrad’s reporting in the New York Post here and here. In short, Dr Kanokporn Tangsuan had severe allergies. She ate in a Disney restaurant. She […]
Aneta Wiewiórowska-Domagalska, ‘Lost in information – The Transparency Dogma of the Unfair Contract Terms Directive’
ABSTRACT ‘Lost in information. The transparency dogma of the Unfair Contract Terms Directive’ explores the transparency principle as developed by the Court of Justice of the European Union based on the Directive on Unfair Contract Terms in Consumer Contracts (UCTD). The EU consumer acquis is based on two assumptions: that of informational imbalance and the […]
Jack Beadsworth, ‘The Migrant Personal Work Relation: A New Category of Employment’
ABSTRACT The relationship between UK immigration law and labour law is increasingly intertwined and complex. Migrant workers are regularly incorporated into the labour market on an unequal and instrumental basis as economic commodities. A central aim of this paper is to expand our conceptual understanding of the legal nature and form of migrant employment. I […]
Hoffman and Swedloff, ‘Insurers as Contract Influencers’
ABSTRACT Contract boilerplate degrading consumers’ litigation options is omnipresent, but a little mysterious. And that’s not just because no one reads it. We know that terms mandating arbitration, exculpating liability, requiring individualized litigation and shifting risk have proliferated in the last generation. But consumer contracts’ production and efficacy has been understudied. We bring to bear […]
‘One size fits all in collective proceedings? CJEU in C‑450/22’
Dear readers, it is with genuine excitement (albeit with some delay) that I type out some thoughts in reaction to a very rich new decision by the CJEU, namely Caixabank and others of 4 July 2024 (C‑450/22). This case is, shockingly but not incredibly, yet another instalment in the floor clauses saga that we have […]