Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-8448b6f56d-wq2xx Total loading time: 0 Render date: 2024-04-24T11:20:11.527Z Has data issue: false hasContentIssue false

2 - Protection of weaker parties in English law

from PART I - Conceptualising unconscionability

Published online by Cambridge University Press:  06 August 2010

By
Stephen Waddams
Edited by
Mel Kenny ,
James Devenney  and
Lorna Fox O'Mahony
Mel Kenny
Affiliation:
University of Leicester
James Devenney
Affiliation:
University of Durham
Lorna Fox O'Mahony
Affiliation:
University of Essex
Get access

Summary

Since the nineteenth century, writers on English contract law have emphasised the enforceability of contracts and have tended to marginalise the instances in which contracts have been set aside for unfairness. In dealing with consideration it has been common to point out that inadequacy of consideration is not, in itself, a defence to contractual obligation, and from this it has been inferred that, if there is sufficient consideration to meet the test of contract formation, the contract must be enforceable. Sir Frederick Pollock in his first edition (1876) wrote that it was:

a distinguishing mark of English jurisprudence that the amount of the consideration is not material. ‘The value of all things contracted for is measured by the appetite of the contractors, and therefore the just value is that which they be contented to give’. It is accordingly treated as an elementary principle that the law will not enter into an inquiry as to the adequacy of the consideration.

Sir William Anson (1879) followed the same line, and made the point more forcefully:

So long as a man gets what he bargained for Courts of law will not ask what the value may be to him, or whether its value is in any way proportionate to his act or promise given in return. This would be ‘the law making the bargain, instead of leaving the parties to make it’.

Type
Chapter
Information
Unconscionability in European Private Financial Transactions
Protecting the Vulnerable
 , pp. 26 - 45
Publisher: Cambridge University Press
Print publication year: 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Pollock, F., Principles of Contract at Law and in Equity (London: Stevens & Sons, 1876)Google Scholar
Anson, W. R., Principles of the English Law of Contract (Oxford: Clarendon Press, 1879)Google Scholar
Powell, J. J., Essay upon the Law of Contracts and Agreements, 2 vols. (London, 1790)Google Scholar
Coote, R. H., A Treatise on the Law of Mortgage (London: Butterworth, 1821)Google Scholar
Story, J., Commentaries on Equity Jurisprudence as administered in England and America (Boston: Hillard Gray & Co., 1836)Google Scholar
Murray, J., ‘Unconscionability, Unconscionability’ (1969) 31 University of Pittsburgh Law Review1Google Scholar
Sheridan, L. A., Fraud in Equity: A Study in English and Irish Law (London: Pitman & Sons, 1957)Google Scholar
Field, L. and others, Daniell's Chancery Practice, 6th edn (London: Stevens, 1884)Google Scholar
Birks, P., ‘The Burden on the Bank’, in Rose, F. (ed.), Restitution and Banking Law (Oxford: Mansfield Press, 1988) 199–200Google Scholar
A Treatise of Equity (London, 1737) 11
Crawford, B., ‘Comment’ (1966) 44 Canadian Bar Review142Google Scholar
Trebilcock, M., The Limits of Freedom of Contract (Cambridge MA: Harvard University Press, 1993) 81Google Scholar
Smith, S., Contract Theory (Oxford University Press, 2004)Google Scholar
Brownsword, R., Howells, G., and Wilhelmsson, T. (eds.), Welfarism in Contract Law (Aldershot: Dartmouth, 1994)
Posner, Eric, ‘Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom to Contract’ (1994) 24 Journal of Legal Studies283CrossRefGoogle Scholar
Waddams, S., ‘Unconscionable Contracts: Competing Perspectives’ (1999) 62 Saskatchewan Law Review1Google Scholar
Bar, C., Clive, Eric, Schulte-Nolke, H., and others (eds.), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference. Interim Outline Edition, prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) (Munich: Sellier, 2008)
Lando, O. and Beale, H. (eds.), Principles of European Contract Law (The Hague, 1999)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×