Category Archives: Unconscionability and Unfair Terms
Shirly Levy, ‘Fixing Standard-Form Contracts’
ABSTRACT Consumers are at a disadvantage when it comes to standard-form contracts – information gaps, weak bargaining power, and behavioral biases all work against them. Moreover, in the digital age, consumers do not even try to read the lengthy contracts they instantaneously approve. Manipulation by sophisticated commercial parties is therefore guaranteed. The literature offers various […]
‘When is an IP agreement between a university and a student inventor unfair?’
In its last judgment of 2022, the Patents Court issued a decision in the case of Oxford University Innovation Ltd v Oxford Nanoimaging Ltd [2022] EWHC 3200 (Pat). In this 650-paragraph judgement, the court ruled that students can in certain situations be ‘consumers’ vis a vis the university under the Unfair Terms in Consumer Contracts […]
Matthias Lehmann and Danny Busch, ‘Make It Stringent: A Plea for an Unfair Terms Regulation’
ABSTRACT The Unfair Terms Directive (UTD) is one of the most important pieces of EU private law, yet its understanding and implementation in the Member States is quite diverse. Despite the abundance of preliminary rulings on the Directive, the Court of Justice of the European Union (CJEU) has not managed to bring uniformity into its […]
Andrea Stazi, ‘Smart Contracts, NFT Trading and Weaker Party Protection’
ABSTRACT ‘Smart contracts’ are characterised by the self-execution of contractual clauses without the need for human intervention, and generally excluding the possibility of interrupting such execution or modifying the content. Non-Fungible Tokens are digital assets that signify ownership of other physical or digital assets. NFTs and related minting, selling and purchasing are publicly verifiable. They […]
David Horton and Reid Kress Weisbord, ‘The New Undue Influence’
ABSTRACT The doctrine of undue influence has long been the problem child of inheritance law. Undue influence, a hazy combination of fraud and duress, supposedly invalidates bequests that a beneficiary obtained by overriding the volition of a vulnerable testator or settlor. But because relationships are complex, concepts like free will are slippery, and challenges to […]
Emily Sherwin, ‘Mistake in Contract Law’
ABSTRACT This short chapter examines American approaches to mistake in contract law, with emphasis on unilateral mistakes and on legal and equitable relief for mistake. Traditionally, mistakes by one party only were not a ground for relief from legal obligation unless the promisee’s mistake was evident to the promisor; however, courts might refuse equitable enforcement […]
Wayne Barnes, ‘Online Disinhibited Contracts’
ABSTRACT There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). […]
‘Egg Donation, Commodification, and Coercive Payments’
Kimberly D Krawiec, ‘Gametes: Commodification and The Fertility Industry’, in The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds, (forthcoming 2024), available at SSRN (22 April 2023). A growing number of couples and individuals use some combination of in vitro fertilization (IVF) clinics, egg donors, sperm donors, and gestational surrogates to have children. […]
‘Pre-contractual information in multi-party settings: mobilizing legitimate interests to restrict consumer protection?’
Today we come back to the judgment in C-179/21, absoluts-bikes, issued by the Court of Justice earlier this year. The decision may have passed under many radars, particularly as it was not preceded by the opinion of the Advocate-General. However, it is worth taking a closer look at it, as the judgment is not just […]
Shaheen Waraich, Fayaz and Zahid, ‘Consent Theory and Adhesion Contract: A Critical Analysis of Contemporary Global Business Practices’
ABSTRACT Consent Theory mandates that both parties should have the right to negotiate terms and conditions of the contract on equal footings. At present, the ‘right to negotiate’ has been adversely affected by the introduction of Adhesion Contracts in almost all forms of online business and parts of the traditional business modes. This paper aims […]