60. Report on Proposals for Unfair Contracts Relief

Published: 2011-09-28 00:00:00
Paper Number: 60
Project: Unfair Contracts Relief
Sector: Consumer Protection,

The basic purpose of the law of contracts is to ensure that promises made for consideration are enforced. Achieving this basic purpose offends the conscience of society in some cases. The courts have a longstanding jurisdiction to refuse to enforce contracts that are determined to be unfair.

This report recommends reforms to the leading concepts used by contract law to tackle the problem of unfairness. These concepts are unconscionability, duress, undue influence, good faith, and misrepresentation. Over the past years, they have been considered in an increasing number of court decisions. This has led to an expansion of, and a degree of confusion about, their scope. It is now timely to rationalize and consolidate these concepts.

Keywords: contract, unconscionability, duress, undue influence, good faith, misrepresentation, exclusion clause, unfair contract, Contract Fairness Act, remedies, consumer protection, consumer financial & debt, inequality of bargaining power, general principles of contract law

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