Warren Swain, ‘Reshaping Contractual Unfairness in England 1670–1900’

English contract law has offered protection for the vulnerable and exploited for centuries. The most wide-ranging doctrine of contractual unfairness could be found within the Court of Chancery. In Lord Nottingham’s time relief extended to a range of situations, loosely held together, with no real unifying structure. Yet even here some common themes emerged. Transactions which fell outside the usury laws were looked at with particular concern. In the eighteenth century Lord Hardwicke attempted to rationalize relief under the rubric of fraud. This was largely a difference in presentation. Under the influence of the rise of legal literature and ideas derived from Will Theory, the nineteenth century might have seen the emergence of a truly coherent doctrine of contractual unfairness. That this did not happen can be attributed to a combination of factors. These include the durability of the notion of fraud, the complexity of contractual unfairness which could not be reduced to a doctrine based on will and the way in which contractual unfairness was bound up with public policy. The substance of relief may have changed less than has often been supposed. Certainly there was no shift from a world in which the courts offered protection to one in which freedom of contract always prevailed. The failure of nineteenth century judges and writers to be more radical has left a legacy of incoherence that is still felt today.

Warren Swain, Reshaping Contractual Unfairness in England 1670–1900. Journal of Legal History, Volume 35, Issue 2, 2014. Published online: 4 July 2014.

First posted 2014-07-05 11:42:25

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