The Doctrine Of Unconscionability Contracts Essay

Equity has a major role through the Australian legal system, with its ability to control abhorrent situations inclusive of cases where unconscionable conduct is apparent. However in a recent case of the ACCC v Zanok Technologies Pty Ltd it was held that a high level of moral obloquy is needed to prove unconscionable conduct. This case has created the question of whether a ‘high moral obloquy’ creates a liability that goes outside the scope of unconscionability, specifically in cases dealt with in equity.

Id. at 74. The court's conclusion of unconscionability was supported by findings of additional factors. Id. at 174. There is evidence of concealment, misrepresentation, and undue advantage on the part of Mrs. Derby as well as emotional weakness on the part of Mr. Derby. Id. at 74. In Jones, Section 2-302 of the UCC authorizes the court to find, as a matter of law, that a contract or a clause of a contract was "unconscionable at the time it was made", and upon so finding the court may refuse to enforce the contract, excise the objectionable clause or limit the application of the clause to avoid an unconscionable result. Jones, 298 N.Y.S.2d 264 (Sup. Ct. 1969).

It can be considered then, that yes, utilitarianism is demanding. This assignment will endeavour to define the statement “Is Utilitarianism too demanding?” it will also discuss the arguments presented by Geoffrey Scarre.

Lastly, one may raise the objection that contractualism as Carruthers supposes it does not lead to a process of moral rule-making that is just and therefore produces an unjust moral

The particular focus of this essay is on how terms are implied. This is central because the courts intervene and impose implied terms when they believe that in addition to the terms the parties have expressly agreed on, other terms must be implied into the contract. Gillies argued that the courts have become more interventionist in protecting the rights of contracting parties thereby encroaching upon the notion of freedom of contract. The doctrine of freedom of contract is a prevailing philosophy which upholds the idea that parties to a contract should be at liberty to agree on their own terms without the interference of the courts or legislature. Implied terms can be viewed as a technique of construction or interpretation of contracts. It has been argued that the courts are interfering too much in their approach to determine and interpret the terms of a contract. The aim of this essay is to explore this argument further and in doing so consider whether freedom of contract is lost due to courts imposing implied terms. The essay will outline how the common law implies terms. The final part of the essay will examine whether Parliament, by means of a statute, or terms implied by custom restrict freedom in a contract. An overall conclusion on the issue will be reached.

contracts do not supply an independent argument for the fairness of enforcing their terms…a hyp othetical contract is not simply a pale form of an actual contract; it is no contract at al.” 5 In the realm of social contract theory, ‘contractual metaphors’ are used to facilitate the mind’s digestion of otherwise abstract intelectual material. They are not to be understood as representing enforceable legal obligations. They are, however, quite useful in conceptualizing discussions vis -a-vis social justice.

In this essay, the focus is on whether it is morally objectionable for a person to recover damages from another’s breach of contract that results in a better financial position than they would have been if the breach had not occurred. This is because in deciding whether to preserve the principle in Clark, law-makers would place high regard on the analysis of Clark’s normative outcome. The following points are the key arguments against awarding a sum to a higher pecuniary advantage??? Such as Clark, which can be subsequently rebutted in this analysis with “normative” research.

As a starting note, any mention of concurrent liability should be assumed to mean concurrently liability in tort and contract. Traditionally the distinction between contract and tort was that contract concerns the improvement of the claimant 's position, whereas tort is concerned with dealing with their position worsening. There has been dispute around concurrent liability and its ambiguity has led to varying decision in cases and statute making as Taylor puts it “the basis of concurrent liability uncertain”. This essay will argue Tort has and is extending itself beyond its traditional role due to judges presumption of morality leading to the unclear concurrent liability we see today. Whilst this concurrent liability shows some

Utilitarianism is a type of theory that was developed to come up with a proper course of action that maximizes the joy of the stakeholders involved. While consequentialism is defined as the view that value of an action derives solely from the value of its consequences. Today, consequentialism is the form that usually takes form. Utilitarianism tries to evaluate the moral worth of an action after one has considered the actual consequences, the foreseen consequences, and the anticipated consequences. In the business environment, situations arise that require the application of utilitarianism ethics. Decision makers are placed on notice and utilitarianism takes priority over the

Mutual assent and consideration go together so this paper will argue against them together. Mutual assent is the idea that all the parties in a contract know what they are contracting to and agree to it. As defined in Charles S. Knapp, Nathan M. Crystal, and Harry G. Prince’s Problems in

In a society where there is diversity in terms of social functions, personal beliefs, professional skills, and socioeconomic backgrounds, etc., and where individuals act out their unique personalities with a high degree of autonomy, mutual relationship are largely regulated through contracts. Due to the prevailing differences, there hardly exists a set of concrete social norms grounded in identical values that regulates the details of social interactions and constrains individual actions. Rather, contracts set binding limits on the duties and obligations both at the present and in the future for individuals reaching mutual agreements. The binding nature of contracts specifies certain conditions that limit the autonomy of individual choices and hence establish order in social interactions.

Philosophers, psychologists, and even ordinary people argue that conforming and complying with authority is beneficial for society as a whole because without a command system, there would be no unified structure controlling the actions of people. And while this is a valid argument, I say that conforming and complying with authority is harmful when it endangers the safety and wellbeing of others because it strips the individual of the ability to utilize and recognize their own judgement on the effect of their actions.

In this essay, I will argue that utilitarianism cannot be defended against the injustice objection. Utilitarians may be able to reply to the injustice objection in some cases by invoking one of two replies, the ‘Long term consequences’ reply, in which utilitarians will avoid unjust actions that increase short-term utility because in the long-term they will not lead to the greatest good. The other reply that may help utilitarianism avoid injustice in some cases is the ‘Secondary principles’ reply, where some rule-based principles such as not murdering (because it generally decreases happiness) may avoid injustice.. However, I will focus on the ‘bite the bullet’ objection, which states that when we do not know what the long term consequences

A Contract requires several elements in order to be considered enforceable. However for the purpose of this essay we would explore one of these elements in order to effectively understand the controversial cases of Williams v Roffey Brothers and Nicholls (contractors) Ltd (1990) and Stilk v Myrick (1804). Before going any further one should briefly understand the doctrine of Consideration. Despite the vast amount of content written, the doctrine of consideration is still to this day unclear due to the inconsistency of the courts and its application of necessary rules. Consideration refers to that which the law deems as valuable in that the promisor receives from the promise that which was promised. In other words, it is the exchange of something of value between the parties in a contract. One should be mindful that in English law, every promise may not be legally enforceable; it requires the court to distinguish between are enforceable and non-enforceable obligations. This brings us to the controversial cases of Stilk v Myrick and Williams v the Roffery brothers. Many argue that that the case of Williams was wrongly decided leading to impairments in the rule initially established in Stilk v Myrick. This essay seek to analyse and critique the cases of Stilk v Myrick and Williams v Roffey Brothers and also highlight whether or not the new rule of Practical benefit lead to serious impairments in later cases.

Contracts are used in many different forms and for just as many different situations within our everyday lives. Some contracts are more involved than others and for some; contracts are an essential of their success. As we continue, we will take a look at different types of contracts with the main focus on enforceable contracts. With so many elements that are incorporated into any contract, the six essential elements of enforceable contracts will be the main focus of this writing. Having a clearer understanding of the essentials of life will help prepare us for life’s curves that may come our way.