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  • 10 - Mistake and Unfairness in Contract Law
  • from Part II - Fusion and Fission in Doctrine and Practice
  • Edited by John C. P. Goldberg, Harvard Law School, Massachusetts, Henry E. Smith, Harvard Law School, Massachusetts, P. G. Turner, University of Cambridge
  • Book: Equity and Law
  • Published online: 26 July 2019
  • Print publication: 01 August 2019, pp 229-253
  • View extract

    Summary

    It is often said, invoking the seventeenth-century Chancellor Lord Nottingham, that the Chancery – or modern courts of equitable jurisdiction – ‘mends no man’s bargain’. This chapter suggests that a legal system which holds that opinion is unwise to do so, that modern courts are not constrained to share that opinion, and that Lord Nottingham himself did not hold it. In various cases, Nottingham granted relief which modified a contractual bargain, or showed himself willing to do so. The power of courts to do so continued to be recognised into the nineteenth century, when it came under fire from the dogma that freedom of contract is sacrosanct. However, modern cases show that the legal system must also advance other values. The necessity to avoid unjust windfalls is an example. The courts can do so, and should be willing to modify contracts in limited situations, without necessarily relying on the language of equity.

Sanctity of Contracts in a Secular Age
  • Sanctity of Contracts in a Secular Age
  • Equity, Fairness and Enrichment
  • Stephen Waddams
  • Published online: 01 March 2019
  • Print publication: 21 March 2019
  • View description
    The phrase 'sanctity of contracts' implies that contracts should always be strictly enforced. But when this objective is relentlessly implemented ruinous burdens are sometimes imposed on one party and extravagant enrichments conferred on the other. Despite recognition of the need to control highly unreasonable contracts in various particular contexts, there remain many instances in which the courts have refused to modify unreasonable contracts, sometimes with extravagant results that are avowedly 'grotesque'. In the computer age assent may be inferred from a click on a screen in the absence of any real agreement to the terms, which are often very burdensome to the user. In this book, arguments are advanced in favour of recognition of a general judicial power to relieve against highly unreasonable contracts, not only for the benefit of the disadvantaged party, but for the avoidance of unjust enrichment, and for the avoidance of anomalous gaps in the law.

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