Unconscionability In Australia
INTRODUCTION
In the past fifteen years the concept of unconscionablitity has become a significant theme in the Australian law of contract. Liberal theories, which locate freedom of contract as central, have been tempered by an increasing emphasis on justice and conscionable conduct in contractual relations. Virginia courts have defined an unconscionable contract to be "one that no man in his senses and not under a delusion would make, on the one hand, and as no fair man would accept, on the other." In other words, the inequality present in the contract must be so gross as to "shock the conscience." The landscape for business in Australia has been dramatically altered in recent years by the legislative prohibitions of misrepresentation, undue …show more content…
Refusal to enforce clause: Most likely, the court will simply strike the offending clause, but enforce the rest of the contract;
Some of the unconscionable contract that the clauses are not fully cheated and pitfall, so usually, the court will reset the unfair clauses and then remain the rest of the clauses in the …show more content…
It is an error to circumscribe equity 's jurisdiction by supposing that equitable fraud can be specifically defined, or that classes of case in which it has been found to exist are mutually exclusive, or by concluding that an element such as inadequacy of consideration or disadvantage resulting from a transaction which influenced a court to relieve in a particular case, is always essential, or that any one element, such as the presence of independent advice, which supported a refusal of relief in a particular case, will always be decisive. The prescription of certain elements, proof of which by the plaintiff is to place an "onus of justification" on the transaction of the defendant cannot make predictable decisions which depend on all the circumstances of the particular case and which necessarily involve an element of impression. It therefore seems more profitable, outside the statutory contexts in which unconscionability is made a specific ground for relief, to approach unconscionability as a component of the general jurisdiction of the courts to grant relief in cases of equitable fraud, and to see unconscionable conduct as a circumstance which may attract the exercise of that
In the past fifteen years the concept of unconscionablitity has become a significant theme in the Australian law of contract. Liberal theories, which locate freedom of contract as central, have been tempered by an increasing emphasis on justice and conscionable conduct in contractual relations. Virginia courts have defined an unconscionable contract to be "one that no man in his senses and not under a delusion would make, on the one hand, and as no fair man would accept, on the other." In other words, the inequality present in the contract must be so gross as to "shock the conscience." The landscape for business in Australia has been dramatically altered in recent years by the legislative prohibitions of misrepresentation, undue …show more content…
Refusal to enforce clause: Most likely, the court will simply strike the offending clause, but enforce the rest of the contract;
Some of the unconscionable contract that the clauses are not fully cheated and pitfall, so usually, the court will reset the unfair clauses and then remain the rest of the clauses in the …show more content…
It is an error to circumscribe equity 's jurisdiction by supposing that equitable fraud can be specifically defined, or that classes of case in which it has been found to exist are mutually exclusive, or by concluding that an element such as inadequacy of consideration or disadvantage resulting from a transaction which influenced a court to relieve in a particular case, is always essential, or that any one element, such as the presence of independent advice, which supported a refusal of relief in a particular case, will always be decisive. The prescription of certain elements, proof of which by the plaintiff is to place an "onus of justification" on the transaction of the defendant cannot make predictable decisions which depend on all the circumstances of the particular case and which necessarily involve an element of impression. It therefore seems more profitable, outside the statutory contexts in which unconscionability is made a specific ground for relief, to approach unconscionability as a component of the general jurisdiction of the courts to grant relief in cases of equitable fraud, and to see unconscionable conduct as a circumstance which may attract the exercise of that