Nelson Enonchong, ‘The state of the doctrine of unconscionability in Singapore’

In EC Investment Holding Pte Ltd v Ridout Residence Pte Ltd (2010), the Singapore High Court declared that unconscionability as a vitiating factor in contract did not form part of the law of Singapore. That statement was the culmination of growing judicial doubts as to the status of the doctrine of unconscionability in Singapore. However, the signal decision of the Singapore Court of Appeal in BOM v BOK (2018) arrested that development and charted a new course for the doctrine. This article examines the current state of the doctrine of unconscionability in Singapore. It traces the rise and fall of judicial scepticism towards unconscionability in Singapore and welcomes the clarity introduced by the restatement of the doctrine in BOM v BOK. It calls on the Singaporean courts to resist the temptation, manifested in BOM v BOK, to accept the view that the doctrine of unconscionability is redundant because its function is now performed by undue influence. The article argues that, contrary to the characterisation in BOM v BOK, the doctrine of unconscionability represented by the earlier English cases is a broad doctrine, not a narrow one. It also contends that it is misleading to suggest that the formulation of the doctrine in the current English cases is, in substance, the same as that of the ‘broad’ doctrine of unconscionability exemplified by the decision of the High Court of Australia in Commercial Bank of Australia Ltd v Amadio (1983). The paper scrutinises the reshaped doctrine of unconscionability formulated in BOM v BOK, highlights some potential difficulties in the three-step process of that doctrine and concludes with a call for a reconsideration of some aspects of the doctrine.

Nelson Enonchong, The state of the doctrine of unconscionability in Singapore, Singapore Journal of Legal Studies (March 2021).

First posted 2021-06-15 12:30:34

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