Category Archives: Unconscionability and Unfair Terms
Ellen Gordon-Bouvier, ‘Analysing legal responses to coerced debt’
ABSTRACT This paper analyses legal responses to the problem of debt taken out due to coercion within an intimate relationship. Coerced debt differs from other forms of domestic abuse, as it involves a contractual relationship between the victim and a third-party lender. Legal responses must consider whether the victim should be released from her contractual […]
Maxwell and Harding, ‘Private Law, Conscience and Moral Reasoning: The Role of the Judge’
ABSTRACT In this article, we focus on private law doctrines that invoke conscience to set standards for citizens in their dealings with each other. We argue that such conscience-based doctrines can — and should — provide guidance to transacting parties, so as to minimise the risk of unconscionable conduct arising in transactional settings. We argue […]
‘Maybe Odysseus Was A Capitalist?’
Marietta Auer, ‘Bargaining with Giants and Immortals: Bargaining Power as the Core of Theorizing Inequality’, Law and Contemporary Problems (forthcoming), available at SSRN (28 August 2023). In this article, Marietta Auer, Director of the Max Planck Institute for Legal History and Legal Theory, takes a sophisticated and nuanced look at the role of unequal bargaining […]
Christian Twigg-Flesner and others, ‘EU Consumer Law and Automated Decision-Making: Is EU Consumer Law ready for ADM?’
ABSTRACT This report is an interim output for the Guiding Principles and Model Rules on Algorithmic Contracts project, the focus of which is the use of automated decision-making (ADM) through algorithms, particularly Artificial Intelligence (AI) driven algorithms, for the conclusion and/or performance of contracts. We offer a review of existing key EU consumer law directives […]
Rebecca Stone, ‘The Inequality of Bargaining Power Principle’
ABSTRACT Which determinants of inequalities of bargaining power between contracting parties’ ought to be legally relevant? The answer depends on our theory of contract. Most will agree that inequalities that erect procedural impediments to freely negotiated agreements are problematic. For those who view contract law as an instrument for maximizing social welfare or as a […]
Mark Giancaspro, ‘Evaluating the Capacity for the Unconscionability Provisions in the Consumer Laws of Australia and New Zealand to Protect Indigenous Consumers’
ABSTRACT Safeguarding vulnerable market participants is a critical function of consumer protection law. Statutory prohibitions are becoming a common feature of consumer law frameworks and provide a powerful tool to address instances of consumer exploitation. Australia has had unconscionability laws since 1986 and New Zealand introduced theirs in 2022. As the case law demonstrates, Indigenous […]
Jonathan Harris, ‘Economic Duress in United States Employment’
ABSTRACT Eight decades after the legal realist and comparativist John Dawson documented the beginning of an evolution of the doctrine of duress in US employment, I have been charged with answering two questions: (1) whether, as Dawson predicted, the doctrine has transitioned from a more restrictive psychological duress standard to a more expansive economic duress […]
Dan Svantesson, ‘An Attempt at Codifying the Equitable Doctrine of Unconscionable Dealings’
ABSTRACT This article is written in honour and in memory of my dear colleague the late Professor Denis Ong – a talented, hard-working, and deservedly leading, authority on equity. Here, I seek to articulate a potential ‘codification’ of the equitable doctrine of unconscionable dealings. While I have been advocating a reform-oriented codification of Australia’s contract […]
Andelka Phillips, ‘Reading the Fine Print when Buying Your Genetic Self Online: Direct-To-Consumer Genetic Testing Terms and Conditions’
ABSTRACT Contracts are ubiquitous online. Clickwrap and browsewrap agreements are to be encountered on almost every website a person engages with when accessing services online. Through these documents, people enter into binding contractual relationships, often without reading and sometimes without noticing these documents, when they engage with a wide variety of services online. This article […]
Marcus Moore, ‘Developments in Contract Law: The 2020-2021 Term – Appeals to Fairness’
ABSTRACT This article analyzes important developments in Contract Law stemming from consideration by the Supreme Court of Canada in 2020-2021. Due to the large number of Contracts cases during this period, the article focuses on prominent appeals occupied with issues of fairness in Canadian Contract Law. Fairness in contracts emerges as an important concern of […]