Doctrine of Unconscionability: Its Development and Possibilities

9798 WordsJun 21, 201340 Pages
Page 1 Malayan Law Journal Articles/2007/Volume 3/DOCTRINE OF UNCONSCIONABILITY: ITS DEVELOPMENT AND POSSIBILITIES [2007] 3 MLJ xliv Malayan Law Journal Articles 2007 DOCTRINE OF UNCONSCIONABILITY: ITS DEVELOPMENT AND POSSIBILITIES Zahira bte Mohd Ishan LLB (Hons) (IIUM); LLM (London) Lecturer, Faculty of Economics and Management, Universiti Putra Malaysia Introduction The term `unconscionability' is protean and used in different ways by different judges and commentators to address a fundamentally similar problem1 that is unfairness2. The issue of unfairness in the law of contract is important due to the nature of modern contracts, which are no longer simple or straightforward but of multifarious types and purposes. Although the…show more content…
In Earl of Chesterfield v. Janssen12, Lord Hardwicke laid down five species of fraud; the first one being a plain case of fraud, which may be actual, while the rest of the species were presumed frauds. His Lordship analysis received approval and was followed by Lord Selborne in Earl of Aylesford v Morris13. The equitable fraud does not mean deceit or circumvention but unconscientious use of the power from the circumstances and conditions of the parties contracting14. Apparently, the various forms of equitable fraud could be subsumed under unconscionable conducts and bargains.15 Some commentators appear to accept that the early doctrine of unconscionability was made up of two parts; first, equity in favour of heir and expectants, and second, equity granted general relief from unconscionable bargains16. For both parts, the early doctrine of unconscionability was identified as unconscionable bargains. Browne-Wilkinson J in Multiservice Book-binding Ltd v Marden summarized the type of classical cases that fell under unconscionable bargains category: the classic example of unconscionable bargain is where advantage has been taken of a young, inexperienced or ignorant person to introduce a term which no sensible well-advised person or party would have accepted 17. The modern version of unconscionability is often seen from the perspectives of unconscionable conduct or behaviour, and unconscionable bargains

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