Category Archives: Unconscionability and Unfair Terms

Robin Boyle, ‘Undoing Undue Influence: How the Doctrine Can Avoid Judicial Subjectivity by Omitting the Vulnerability Element’

ABSTRACT This article addresses the flaws of the doctrine of undue influence. When deciding contractual disputes, courts are concerned about the fairness of the transaction. One defense to the enforcement of a contract is the theory that undue influence was asserted. The problem with this defense is that subjectivity has crept into the decision-making process. […]

‘Duress in Contract and Restitution for Unjust Enrichment: Lessons from Mistake’

… This article is highly recommended. From a similar starting point, and drawing similar distinctions, I would go further. In the law of Contract, the mistake that will render a contract void at law is a fundamental one (see, eg, Bell v Lever Bros Ltd [1932] AC 161, [1931] UKHL 2 (15 December 1931); Fitzsimons […]

Charmaine Chang, ‘When a Contract Falls Short: A Special Case for Restitution Under Duress in Unjust Enrichment’

ABSTRACT The English law of unjust enrichment deals with situations where it is unjust for someone to receive a benefit without paying for it. Duress is one of the unjust factors that allows for restitution. The recent approach of the court assumes the same test for duress in contract and unjust enrichment as in CTN […]

Sebastian Omlor, ‘Unfair Contractual Terms under the EU Data Act’

ABSTRACT In January 2024, the EU Data Act (DA) came into force, which is a central building block of the EU Strategy for data. It contains special rules on control of unjust contractual terms. This article examines these provisions of the DA, explains their systematic relationship to other EU secondary law, in particular the Unfair […]

Hila Keren, ‘The Unbearable Narrowness of Undue Influence’

ABSTRACT This chapter illuminates the unbearable narrowness of the doctrine of undue influence and calls for its expansion. Conventional applications of the doctrine focus on individuals who are extremely vulnerable to exploitation by those with whom they have close relationships. They fail to help in numerous other salient contexts in which power gaps between the […]

David Berman, ‘A Critique of Consumer Advocacy Against the Restatement of the Law of Consumer Contracts’

ABSTRACT In May 2019, the American Law Institute proposed adopting a Restatement of the Law of Consumer Contracts. In it, the Restatement’s Reporters suggested a ‘grand bargain’, which removed the requirement that consumers meaningfully assent to contractual terms and compensated for this by adding teeth to ex post remedies already available to consumers. The proposed […]

Radin and Enman-Beech, ‘The Regulation of Unfairness in Contract’

ABSTRACT This chapter surveys the theoretical challenges raised by unfairness in contract using examples from the common law of contract, work law, consumer law, anti-discrimination law, and procedure. It is not obvious that a contract, or part of a contract, is the sort of thing that can be fair or unfair, but there is much […]

Riccardo Serafin, ‘The Court of Justice on Unfair Terms and Supplementation of the Contract: How Far is Too Far?’

ABSTRACT The paper deals with the problem of whether – and under what conditions – the judge can modify an unfair term included in a consumer contract or replace it with a default rule to manage the resulting gap. This area of the law has been recently developed through several judgments of the Court of […]

Henry Cooney, ‘The Lawful Act Duress Myth’

ABSTRACT This article considers whether there exists a law of ‘lawful act’ duress. I argue that the law of duress prohibits only pressure that is unlawful. The concept of ‘lawful act’ duress, as it is commonly understood, finds no support in the cases. Although there are many reported examples of duress involving threats of lawful […]

Buccafusco, Hemel and Talley, ‘The Price of Fairness’

ABSTRACT The COVID-19 pandemic led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it reawakened a debate about whether and how to regulate ‘price gouging’ – a controversy that continues as inflation has accelerated even as the pandemic abates. Animating this debate is […]