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Should we have a general doctrine of unfairness?
Why hasn't the law adopted one?
Cautious incremental extensions are better than wider reform o Chen Wishart: garbage, this must be weighed against the desirability of recognising a general principle which highlights the similarities underpinning discrete categories
? Such as the neighbourhood principle in tort law under negligence
? COUNTER: but the neighbourhood principle (proximity) is liable to change in different circumstances - in different situations it will be different, not the same.
Shows that while you can have a general concept, you need to tailor it specifically to a situation - which is what is done at the moment.
General doctrine would lead to uncertainty o Piecemeal doctrines also lead to uncertainty
A general principle against unfairness would undermine freedom to contract o Chen Wishart: there are already loads of restrictions on the freedom to contract
? E.g. consumers, tenants, employees all protected by Statutory regulations and restrictions
? Vitiating factors such as duress and undue influence tend to have this function as well
? Judges will use backward reasoning to avoid an unfair result anyway
? Remedies are also concerned with fairness to the contract breaker. Suggested means of implementation
Undue influence o Lord Scarman in Pao On v Lau Yiu Long : o Royal Bank of Scotland v Ettridge
? Doctrine of undue influence is wide enough to assimilate the various doctrines of duress, unconscionability, undue influence etc.
Chen Wishart: however, this only seems to target relationships of influence, not anything else.
Inequality of bargaining power o Lord Denning in Lloyds Bank v Buddy
? Thread running through doctrines is inequality of bargaining power - we look to unfair results, parties who enter into transactions without independent advice, whose bargaining power is impaired and who is put under pressure
We're not looking at proof of wrongdoing, only the result
Lord Scarman in Pao On v Lau Yiu Long :
Unconscionability o Per US Law - anything the court thinks it shouldn't give effect to
? Potentially very wide indeed.
Good faith o Ugh, French and European Law quite like this.
o Chen Wishart: Law tends to cluster around three areas
? Substantive Unfairness - Moi - not necessarily for duress or undue influence.
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