Category Archives: Unconscionability and Unfair Terms
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 […]
Chinglong Lim, ‘Regulating Unfair Terms in Standard-Form Contracts: A Comparative Study of French and Cambodian Law’
ABSTRACT This article examined the regulation of unfair contract terms in Cambodian consumer law through a comparative analysis with French and European Union legal frameworks. It focused on the widespread use of standard-form contracts in modern commerce. These contracts have increased concerns about structural imbalances between businesses and consumers, especially in jurisdictions where legal protections […]
Kricheli-Katz and Marotta-Wurgler, ‘The Distributional Costs of Effective Consumer Regulation’
ABSTRACT Disclosure is a cornerstone of consumer protection regulation, yet little is known about its differential effects across consumers. We study how disclosure format influences decision-making across the income distribution, drawing on insights from behavioral research on financial scarcity. Prior work indicates that financial stress can activate a scarcity mindset, narrowing the cognitive resources available […]
Kiener and Patterson, ‘Economic duress as contextual disqualification’
ABSTRACT People often enter contracts under pressure, including economic pressure. Businesses bargain hard, and parties sometimes exploit the fact that others are in financial difficulty. Contract law has long struggled to say when this kind of pressure crosses a line. The problem is how to distinguish legitimate commercial pressure from impermissible economic duress: that is, […]
Mackenzie Custer, ‘Click to Agree: Reassessing Minors’ Persona Rights in the Age of Monetized Social Media’
INTRODUCTION In today’s digital sphere, playdates turn into product placements. A nine-year-old influencer earns more in sponsorships than their parents, yet under contract law, they cannot legally sign their own name. In the modern internet landscape, tension emerges between individuals’ long-established rights in their personas and the contractual realities governing online platforms. Social media networks […]
William Garske, ‘The Test for Lawful but Illegitimate Pressure’
ABSTRACT Although the High Court of Australia is yet to recognise a doctrine of lawful act duress, this development appears likely to be only a matter of time. This article looks to the future and seeks to determine the appropriate lens through which cases of lawful act duress should be analysed, considering three models recently […]
Chen, Kutin and Russell, ‘Buy Now Pay Later and Its Intersection with Family Violence: Prevalence and Prevention’
ABSTRACT Buy Now Pay Later (‘BNPL’) has gained traction particularly among young Australians as a smart, interest-free ‘way to pay’. Yet, digitalisation, easy access to credit, and the lack of friction have heightened the risks of financial abuse. Coerced BNPL debt continues to increase, and survivors’ attempts to extricate themselves from such debt are fraught […]
Baffi and Parisi, ‘The Double Edge of Freedom of Contract’
ABSTRACT Standard economic reasoning suggests that expanding an individual’s choice set cannot reduce welfare because additional options may always be ignored. This intuition underlies the traditional economic justification for freedom of contract. This paper shows that the monotonic relationship between choice and welfare may break down in bargaining environments characterized by asymmetric bilateral monopoly and […]