1.0 Introduction According to Black Law Dictionary, unconscionability is a doctrine under which court may deny enforcement of unfair or oppressive contracts because of procedural abuse or substantive abuse arising out of the contract formation, such as terms which violate reasonable expectations of parties or which involve gross disparities in price; either abuse can be the basis for a finding of unconscionability. The general principle for unconscionability is, when one party by some reason of some conditions or circumstances is placed at a special disadvantage regarding an unfair and unconscientious advantage is taken, the court will set aside the transaction on the ground of ‘unconscionable conduct’. It is undeniable that doctrine of unconscionability is a basis for undue influence and both of these doctrines share a lot of similarities. However, the main issue that arises is: whether the doctrine of unconscionability is appropriate to form the underlying basis for a claim of voidable contract on the ground of undue influence. 2.0 Elements for unconscionability In order to answer the issue which is stated above, it is pertinent to discuss the elements of the two doctrines. First we need to discuss the elements of unconscionability. In the case of Fry v Lane , the court suggested that there are three elements to establish unconscionability. First, one party must be at a special disadvantage to the other, for instance, poverty, ignorance or lack of advice. Secondly, this weakness must be exploited by the other party in some morally culpable manner. Thirdly, the resulting transaction must not be merely harsh or improvident, but overreaching and oppressive. When the terms of the contract are so oppressive and outrageous that it... ... middle of paper ... ... I am of the view that the doctrine of unconscionability is not appropriate to form an underlying basis for voidable contract on the ground of undue influence. This is because both of the doctrines embrace different elements and principles and therefore the doctrine of unconscionability is not appropriate to be submerged in the doctrine of undue influence within section 16(3)(a). Both doctrines have evolved quite separately to meet the justice of different factual situations. It is suggested that Malaysia should import a wider ground of doctrine of unconscionability which is independent from the doctrine of undue influence into the Malaysian Contract Law in order to overcome contractual fairness. Quoted by Gopal Sri Ram J in the case of Saad Marwi, Malaysia should adopt the English doctrine of unconscionability and apply it in a broad and liberal way as in Canada.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
McLauchlan explicitly analyses the importance and issues that surround objectivity in contract law. While it explains necessity, the article presents all the controversy surrounding the objective approach and suggests the implementation of exceptions.
-Court must be convinced that failure to comply with an agreement will lead to one of the parties to suffer prejudice. Court will protect innocent party, will provide remedy
The aim of this paper is to take an in-depth look at the emotion of disgust, and explore what role (if any) it should play in morality. The issue of what role disgust should have in morality is disputed by advocates and skeptics. In what follows, I will outline this dispute and show the arguments each side makes. Following that, I will take a look into Kelly’s view which takes the skeptical stance, but differs in how he comes to take that stance. Next I will show how Kelly uses his view to disprove the disgust advocates’ arguments. Finally, I will illustrate a promising line of argument that may give hope to the disgust advocates, in light of Kelly’s powerful skeptical stance.
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
What are the necessary requirements of the doctrine of proprietary estoppel and discuss whether the notion of unconscionability alone lead to a successful remedy. Furthermore, examine how constructive trusts and proprietary estoppel allow the courts to stray from relevant statutory provisions and empowers judiciary to have more discretion where equitable remedies are queried.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
The Perils of Indifference by Elie Wiesel is about how being indifferent to something, no matter how small, can cause a horrible outcome to occur, because of the lack of human conscience of the problem. Throughout the speech Wiesel uses the rhetorical triangle, pathos, ethos, and logos, to stir emotions in his audience, and put force behind the ideas he purposes. He presents the audience with situations that may normally arise happy feelings in people, to show how dark they truly are behind what they are told. He expresses that their is never a black and white, or a good or evil, but only the grey that fades between the two.Together these approaches develop a strong and inspiring speech, that both provokes the audience, and baffles them.
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
...mended that in determining whether in an individual case the term or notice was fair and reasonable, both substantive fairness (‘the substance and effect of the term’) and procedural fairness (‘the circumstances existing at that time’) be taken into account. (42)And additionally there are requirements that the contract must be written in ‘plain, intelligible language’ for a reasonable person would understand.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
Unhealthy Behavior is not in a state of good or normal health, in an unsound, weak, or unhealthy condition. Being a healthy person does not mean only being healthy in diet and being physically healthy. Mentally healthy is also part of being a healthy person. Unhealthy Behavior may not affect you physically however, there is always chance of affecting mentally. One of my Unhealthy Behavior is no doctor’s checkup. Regular health exams and tests can help find problems before they start which is the main reason behind the check ups. By getting check up and the right health services and treatments, it helps your chances for living a longer, healthier life. Stressing out is another unhealthy behavior which keeps me away to become a healthy
One of the most prominent trends in organization today is the use of team to accomplish the work, which have assigned to an individual. Every team is made up of specific individuals and they are specialized in certain area of interest. If one of the specifications is missing It can be reflected on their performance. It indicates that, every individual is important for the organization. An individual’s performance within an organization and its relationship with its subordinates and coworkers is highly influenced by the Big Five personality traits. My Big five test results depicted that I am traditional/conventional individual with significantly high percentile of conscientiousness and agreeableness. I also have lower neuroticism and slightly
Mental health refers to the state of individuals psychologically, emotionally and socially. Mental health affects a person’s emotions, feelings, thoughts, and sections when exposed to different situations. Furthermore, mental health is responsible for a person’s reaction to stress and other social conditions. Generally, mental health affects how a person relates to others and their ability to understand and interact with them. Therefore, problems that affect a person’s mental health affect the abilities to socialize, their feelings, moods, reaction to situations. The person experiencing mental health problem may portray different behaviors when confronted with different issues. Mental health issues have several