Category Archives: Unconscionability and Unfair Terms
Rachel Landy, ‘Tech Contracts and the No-Plaintiff Problem’
ABSTRACT Much ink has been spilled over how antitrust law could address the effects of Big Tech’s market dominance. But when dominant firms include unfair terms in their agreements with business customers, contract law should be able to step in, too. Contract law has two principles that are inherently appropriate to invoke when unfair terms […]
Russell Korobkin, ‘Contract Boilerplate and Constitutional Public Policy’
ABSTRACT The modern economy is awash in standard form contracts filled with ‘boilerplate’ terms that are drafted by repeat players and routinely accepted by consumers, employees, and businesses without reading or understanding their content. Standard form contracts weaken but do not subvert party autonomy but they do undermine contract efficiency. While American courts attempt to […]
Enrico Baffi, ‘Voluntary but Voidable? Consent, Coercion, and the Limits of Contractual Freedom’
ABSTRACT This Article examines the treatment, across several legal systems, of promises obtained through pressure – in cases of duress and of the exploitation of a state of necessity – and asks to what extent that treatment can be understood as designed to promote economic efficiency. As an operational tool, it proposes the criterion of […]
Kantorowicz-Reznichenko, van Heusden and Kantorowicz, ‘Consumers’ Rights in the Shadow of the Brand: A Conjoint Experiment on the Valuation and Trade-Offs of Contractual Rights’
ABSTRACT With the rise of standard contracts, tensions persist between protecting consumers from unfair terms and preserving freedom of contract. A key concern is that consumers may waive legal rights, often unknowingly, particularly when dealing with trusted brands. To address this, we conducted a conjoint experiment with a representative US sample to evaluate how consumers […]
Travis Gilly, ‘Phantom Consent: Formation Failure, Inaccessible Interfaces, and the Collapse of the Clickwrap Shield’
ABSTRACT Every consumer platform on the internet sits behind the same front door: a wall of terms presented through an interface engineered to be clicked rather than read, followed by an Accept button. Courts enforce what happens at that door under an objective theory of assent that asks whether a reasonably prudent offeree would have […]
Sam Wise, ‘Analyzing the Legal Enforceability of BDSM Contracts between Sex Workers and Clients’
ABSTRACT Contracts are the common legal solution provided to those entering into agreements who wish to decrease their liability. However, there is a limit to which communities can take advantage of these legal protections. As previously taboo sexual practices like BDSM become more popular, those seeking to engage in the practices may think it reasonable […]
Schwartz and Sepe, ‘Freedom of Contract at Common Law’
ABSTRACT We defend the common law conception of freedom of contract against criticisms that unregulated contractual freedom permits strong parties to impose unjust terms on weak parties. Common law courts enforce contracts when the parties are informed, competent and free from coercion, and performance of such a contract would not impose costs on nonparties. These […]
Del Hierro and Francisco, ‘The Unconscionability Doctrine Versus The Gross Disparity Doctrine’
ABSTRACT This article proposes that the American unconscionability doctrine replace or complement the Ecuadorian gross disparity doctrine (lesidn enorme), a change that requires reformation of Ecuador’s Civil Code. To understand this proposal, this article uses a comparative analysis of both doctrines, arguing that even though the United States’ unconscionability doctrine and the Ecuadorian gross disparity […]
Rick Bigwood, ‘Rescuing “Fiduciary” Undue Influence Law in Australia?’
CASE OUTLINE Mr and Mrs Wu were married for 55 years until Mrs Wu passed away in 2018. They had two daughters, Karen and Angela, the latter being the ‘favoured’ of the two. The family home, owned jointly by Mr and Mrs Wu, was in O’Malley, a suburb of Canberra. In 2009,the home was gifted […]
Anthony Gray, ‘Lawful Act Duress in Australia: An Argument for Good Faith’
ABSTRACT This article considers the doctrine of lawful act duress. It considers developments in the United Kingdom and Australia. Various doctrinal bases have been suggested for this doctrine. These include unconscionability, proportionality and good faith. The article critically considers each of these, before concluding that good faith is the best option. It provides specific examples […]