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Should We Have A General Doctrine Of Unfairness Notes

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Should we have a general doctrine of unfairness?
Why hasn't the law adopted one?

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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.

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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.

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General doctrine would lead to uncertainty o Piecemeal doctrines also lead to uncertainty

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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

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Undue influence o Lord Scarman in Pao On v Lau Yiu Long [1980]: 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.

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Chen Wishart: however, this only seems to target relationships of influence, not anything else.

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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

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We're not looking at proof of wrongdoing, only the result

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Lord Scarman in Pao On v Lau Yiu Long [1980]:

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Unconscionability o Per US Law - anything the court thinks it shouldn't give effect to
? Potentially very wide indeed.

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Good faith o Ugh, French and European Law quite like this.

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General doctrine?
o Chen Wishart: Law tends to cluster around three areas
? Substantive Unfairness - Moi - not necessarily for duress or undue influence.

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