Category Archives: Unconscionability and Unfair Terms
Marcus Teo, ‘Anxieties about International Law: Law Debenture v Ukraine’
ABSTRACT The idea that international law is received into the common law to some greater or lesser extent persists in contemporary accounts of the English constitution. In The Law Debenture Trust Corporation plc v Ukraine, however, a majority of the Supreme Court held – in circumstances ripe for its reception – that international law had […]
‘CJEU confirms: consumer notions in contract law and private international law are not equivalent’
Earlier today the Court of Justice issued the judgment in case C‑570/21, YYY (Notion de consommateur). The case concerned, once again, the notion of the consumer under Directive 93/13/EEC on unfair terms in consumer contracts (UCTD). The Court has already dealt with similar problems in its earlier case law, recently eg in case C-485/21, SV […]
Adrianna Prattas, ‘Unfairness in Contractual Agreements with Streaming Corporations and Suggestions to Promote Fairness’
ABSTRACT Streaming corporations are dominating the field of entertainment, especially during lockdowns amid the COVID-19 pandemic. During the pandemic, subscription Video on Demand (SVoD) services, such as Netflix, Amazon Prime Video, and Disney+, saw the largest increase in viewing compared to broadcasters and other entertainment services in the United Kingdom. In their study on viewing […]
Catherine Le Guerrier, ‘Mixing Oil and Water? Redrawing the Limits of Contract Freedom After the Criminalization of Usury’
ABSTRACT Theorists who debate whether private law should remain truly private rarely consider the possibility of a disruptive collision between private law and regulation that would force the former to engage with public policy concerns. This article shows an example of such a collision, which was caused by Parliament’s choice to criminalize the act of […]
de Mestre and Kha, ‘Testamentary undue influence in Australia: should it be reformed?’
ABSTRACT Testamentary undue influence is a doctrine distinct from the equitable doctrine of undue influence. The requirements to prove testamentary undue influence have caused academic and judicial criticism questioning whether the doctrine adequately safeguards the vulnerable testator. As the aged population increases, it is increasingly important to re-examine the level of protection afforded by the […]
Zipursky and Takhshid, ‘Consumer Protection and the Illusory Promise of the Unconscionability Defense’
ABSTRACT The United States Supreme Court’s notorious decision in AT&T Mobility LLC v Concepcion seems to display impatience with the idea of an unconscionability defense to the enforcement of a contract. At the core of Justice Antonin Scalia’s opinion, however, was not an argument against the idea of unconscionability per se, but an argument against […]
Sanger and O’Sullivan, ‘Russian Threats of Force against Ukraine may constitute Duress in English Contract Law’
In Law Debenture Trust Corporation v Ukraine [2023] UKSC 11 the Law Debenture Trust Corporation, acting on behalf of the Russian Federation (‘Russia’), sought repayment of debt owed to Russia by Ukraine, pursuant to Eurobonds issued in 2013 with a nominal value of $3 billion (the ‘Notes’), which fell due in 2015 but were not […]
Rory Gregson, ‘All or Nothing’
Glaser v Atay [2023] EWHC 2539 (KB) is a significant decision in two respects. First, it is a vanishingly rare example of a superior court striking down a contractual term as unfair under Part 2 of the Consumer Rights Act 2015 (CRA). Second, the case contains interesting – and ultimately problematic – discussion of the […]
Diane Kemker, ‘Pro-Natalism in Probate Law’
ABSTRACT ‘Pro-natalism’ is a term that has been variously used to describe any and all government policies that favor birth, babies, children, families, and population growth, as well as more focused laws that incentivize childbirth; burden, ban, or criminalize abortion and/or contraception; and otherwise disfavor the childless. Whether and to what extent US law is […]
Andrea Boyack, ‘Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights’
ABSTRACT Contract law and the new Restatement of the Law of Consumer Contracts generally treats the entirety of the company’s boilerplate as presumptively binding. Entrusting the content of consumer contracts to companies creates a fertile legal habitat for abuse through boilerplate design. There is no consensus on how widespread or severe abuse of contract is. […]