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Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

12. Unconscionable bargains  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the concept of unconscionable bargains and the conditions under which it operates as a vitiating factor. It discusses the history of the court’s jurisdiction to give relief in cases of unconscionable bargains and explains the current scope of relief, considering the elements in modern case law on unconscionable bargains.

Chapter

Cover Contract Law Directions

9. Duress, undue influence and unconscionable bargains  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter focuses on the principles applicable where a contract is entered into after there have been threats or improper influence brought to bear on one party or where the one-sided nature of the contract suggests that one party has been taken advantage of. The discussions cover duress (duress and pressure, threats against the person, threats against goods and economic duress); undue influence (actual undue influence, presumed undue influence and third-party cases); and unfairness and unconscionable bargains.

Chapter

Cover Contract Law Directions

9. Duress, undue influence and unconscionable bargains  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter focuses on the principles applicable where a contract is entered into after there have been threats or improper influence brought to bear on one party or where the one-sided nature of the contract suggests that one party has been taken advantage of. The discussions cover duress (duress and pressure, threats against the person, threats against goods and economic duress); undue influence (actual undue influence, presumed undue influence and third-party cases); and unfairness and unconscionable bargains.

Chapter

Cover Essential Cases: Equity & Trusts

Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Crédit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Barclays Bank Plc v O’Brien [1994] 1 AC 180, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover JC Smith's The Law of Contract

19. Unconscionable bargains and inequality of bargaining power  

This chapter considers the law on unconscionability and inequality of bargaining power. English law has traditionally been cautious about wholeheartedly adopting such sweeping principles as ‘unconscionability’, preferring instead to avoid unfair outcomes through particular doctrines (for example, misrepresentation, duress, and undue influence). Some contracts may be set aside if they are considered to be an ‘unconscionable bargain’, i.e. if the claimant is ‘poor and ignorant’, the terms of the contract are substantially disadvantageous to the claimant, and the claimant had no independent advice. There is no general principle in English law that a contract can be set aside due to inequality of bargaining power.

Chapter

Cover Contract Law

20. Unconscionability and Inequality of Bargaining Power  

This chapter considers a group of cases, such as those concerned with unconscionable bargains, in which the courts have been asked to grant relief on the basis that the contract concluded between the parties was, in some way, unfair, outlining examples drawn both from the common law (including equity) and from statutes. The rise and fall of a doctrine of inequality of bargaining power is also noted. It then considers the arguments in favour of drawing these disparate cases together into one general doctrine and concludes by drawing on some academic reflections on the case-law and the role of fairness in the law of contract more generally.

Chapter

Cover Complete Contract Law

15. Undue Influence, Unconscionability, and Equality of Bargaining Power  

This chapter examines undue influence, which is largely about pressure and influence arising from a relationship. It begins with the basic role of the law on undue influence before moving to the substantive case law. The case law is divided into three categories, which are based on the different ways of proving undue influence. The first relates to what is known as ‘actual undue influence’, which is where a complainant proves undue influence. The second is where undue influence between two parties can be presumed from the circumstances. The third category has been a major problem in modern cases and it involves undue influence coming from a third party. The chapter then turns to the wider issues that complete the ‘bigger picture’. The first of these is the area often referred to as ‘unconscionability’, which is about the exploitation of weakness. The second is the attempt to create a wider ‘inequality of bargaining power’ principle. Finally, the chapter looks at the Consumer Protection from Unfair Trading Practices Regulations 2008, which can cover conduct otherwise classed as duress, undue influence, and harassment.

Chapter

Cover Contract Law

9. Unfairness: undue influence, non-commercial guarantees, unconscionable bargains  

This chapter examines three doctrines that allow a party to set aside a contract: (1) undue influence, which deals with the abuse of relationships of trust and confidence; (2) a doctrine protecting non-commercial parties who guarantee another’s debts; and (3) unconscionable bargains, which deals with the exploitation of bargaining weaknesses. It discusses: (i) the justification for these doctrines; (ii) the burden of proof for undue influence, unfair non-commercial guarantees, and unconscionable bargains; (iii) how each element of the respective burdens of proof is satisfied; and (iv) whether the law is satisfactory, and if not, how it might be developed in the future.

Chapter

Cover Card & James' Business Law

10. Vitiating factors  

This chapter focuses on the vitiating factors in a contract, namely those that can render a contract void ab initio or voidable (the distinction between void and voidable contracts is discussed). These include misrepresentation, mistake, duress, undue influence, unconscionable bargains, and illegality and public policy. Certain vitiating factors like mistake will render a contract void ab initio whilst others such as misrepresentation will render the contract merely voidable. It also shows that contracts are not beyond challenge once formed and describes several cases where the courts have held that a contract should not be enforceable despite the validity of the contract’s formation.

Chapter

Cover Anson's Law of Contract

10. Duress, Undue Influence, and Unconscionable Bargains  

Jack Beatson, Andrew Burrows, and John Cartwright

This chapter discusses the nature and operation of duress, undue influence, and unconscionable bargains. Duress and undue influence occur where one party to a contract has coerced the other or exercised such domination that the other’s independence of decision was substantially undermined. In the limited category of cases in which the doctrine of unconscionable bargains operates, it is necessary to show not only that the process by which the contract was made was unfair but that there is contractual imbalance, i.e., the doctrine extends to the actual substance of the contract and the fairness of its terms. Conduct which constitutes duress or undue influence by a trader against a consumer may also constitute a ‘prohibited practice’ under the Consumer Protection from Unfair Trading Regulations 2008, which will give the consumer ‘rights to redress’ under the Regulations.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

16. Unconscionability and unfairness  

This chapter is concerned with unconscionability, good faith, and inequality of bargaining power. It is often stated that there are no such general doctrines in English Law. Concerns about uncertainty clearly play a part in this, and there is a tension between freedom of contract and intervening in the bargain reached by the parties on the basis of its substantive unfairness. There has, of course, been legislative intervention in relation to the use of unfair exemption clauses and unfair terms, more generally, in the consumer context (see Chapters 10 and 11) and, before such legislation, in particular, judges were prepared to manipulate common law rules on incorporation and construction (see Chapter 9) to deal with unfairness. This chapter principally deals with cases in which the courts have intervened in a contract, or refused to enforce it, where one party had some weakness in his or her position, in relation to the other, and that other has gained unduly advantageous terms. Whether there is a duty to act in good faith, implied or otherwise, in light of recent case law such as Bates v Post Office, is also explored.