Category Archives: Unconscionability and Unfair Terms
Luís de Lima Pinheiro, ‘Prorogation by Submission under Article 26 of Brussels Ibis Regulation and the Protection of Weaker Parties’
ABSTRACT Section 7 of Chapter II of the Brussels Ibis Regulation (EU Regulation no. 1215/2012) deals with prorogation of jurisdiction. The choice of jurisdiction can be made by a choice-of-court agreement or by a trust provision (Art 25), or by submission to the court seized (Art 26). The purpose of Art 26 is, in part, […]
Robert Emerson, ‘Electronic Assent: Assuring the Review and Comprehension of Contract Terms in Franchising’
ABSTRACT Franchisees often sign agreements without understanding the contract to which they have theoretically agreed. Digital business technology has become the norm across the world, however; and electronic contracts – e-contracts – come with a unique set of advantages – faster turnaround, seamless integration, increased flexibility – and also a unique set of challenges. This […]
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 […]
‘Contract Law and Inequality’
Rebecca Stone, ‘The Inequality of Bargaining Power Principle’, in Research Handbook on the Philosophy of Contract Law (forthcoming, 2024). Inequality of bargaining power between parties is a significant concern in contract law. Parties are not always equal, and negotiations may occur under conditions of power imbalance, impacting the contract terms. A fascinating new article by […]
Tatjana Josipović, ‘Scope of Application of the Unfair Contract Terms Directive: Is It Time for a New Compromise?’
ABSTRACT The scope of application of the Unfair Contract Terms Directive (UCTD) is defined as ‘delicate compromises between the legal traditions of different Member States’. These compromises are the results of the alignment of various national models of regulation of the unfairness control of contract terms based on different approaches (market oriented approach or consumer/weaker-party-protection […]
‘Some American Reflections on KCON XVII’
How was this year’s KCON different from other KCONs? I’ve been reflecting on that question in the aftermath of the conference. The conference was large. There were usually three concurrent sessions going at once. I can’t replicate Nick Mouttotos’s feat in yesterday’s post by providing an overview of the conference as a whole. Rather, this […]
ECJ judgments on the Unfair Terms Directive (European Review of Private Law)
‘… Against this backdrop, we considered it necessary to reflect on the judgments that the ECJ has rendered so far on the UCTD. With this aim, we organized an international working group to produce a comprehensive and updated study of the key concepts of the UCTD, as interpreted by the ECJ. We were fortunate to […]
Johan Vannerom, ‘Social Justice in (Consumer) Credit Agreements: Is There Need for a Diverse Regulatory Approach?’
ABSTRACT This working paper, part of a presentation given at the London School of Economics in 2014 and great parts of which has been published in a book article, explores the definition of what Social Justice should embrace. The concept is the subject of a discussion amongst scholars and legal practitioners. In the second part, […]
Daniel Wilf-Townsend, ‘Deterring Unenforceable Terms’
ABSTRACT Contract law doesn’t work the way most people—that is, most nonlawyers—think it works. People think that if they agree to a contract, they are bound by its terms—no matter if those terms are unfair or legally unenforceable. But that’s not correct. Although there is a default presumption that the law will enforce terms that […]
Robin Boyle, ‘Undoing Undue Influence: How the Doctrine Can Avoid Judicial Subjectivity by Omitting the Vulnerability Element’
ABSTRACT This article addresses the flaws of the doctrine of undue influence. When deciding contractual disputes, courts are concerned about the fairness of the transaction. One defense to the enforcement of a contract is the theory that undue influence was asserted. The problem with this defense is that subjectivity has crept into the decision-making process. […]