Interpretation of Contracts and Control of Unfair Terms in Asia: A Comparison

2020 ◽  
pp. 477-558
Author(s):  
Stefan Vogenauer
Keyword(s):  
The Philippines ◽  
Legal Systems ◽  
Judicial Control ◽  
Consumer Contracts ◽  
Open Control ◽  
Enforcement Mechanisms ◽  
Unfair Terms ◽  
General Contract Law ◽  
And Control ◽  
Standard Terms

This chapter concludes Volume III of Studies in the Contract Laws of Asia. It summarizes the main findings on the 13 Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam). With regard to both the interpretation of contracts and the control of unfair terms, the various legal sources and their ‘Western’ sources of inspiration are described, questions of classification and terminology discussed, and the major substantive issues that arise across legal systems examined. The latter include the dichotomy of ‘subjective’ and ‘objective’ approaches to contractual interpretation; the admissible aids to interpretation, such as customs, usages, the commercial background, good faith, and the negotiations of the parties; the conflict between ‘literalist’ and ‘contextualist’ approaches, particularly with regard to gap-filling by way of implication of terms or ‘supplementary interpretation’; the ‘covert’ judicial control of unfair terms under general contract law doctrines, such as incorporation, interpretation, and the rules on procedural unfairness; the open control based on specific legislation on either particular types of term, unfair standard terms, or consumer contracts, and the supporting enforcement mechanisms. In conclusion, the chapter highlights the differences and similarities that can be observed across Asia, relates these to the wide variety of legal transfers that occurred in the relevant legal systems, and maps out issues for further research.

Regulating Unfair Terms and Consumer Protection under Taiwan Law

2020 ◽  
pp. 399-412
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Consumer Protection ◽  
Contract Law ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Enforcement Mechanisms ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how the contract law of Taiwan responds to extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or terms in consumer contracts. Attention is also paid to the enforcement mechanisms for measures of consumer protection. The chapter further analyses how the Taiwanese courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Taiwanese courts regulate unfair contract terms in practice.

Contract Terms in the Philippines: Incorporation, Interpretation, Implication, and Unfair Terms

2020 ◽  
pp. 308-338
Author(s):  
Michael Anthony C DIZON
Keyword(s):  
Contract Law ◽  
The Philippines ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
The Law ◽  
Enforcement Mechanisms ◽  
Unfair Terms ◽  
General Contract Law ◽  
Restraint Of Trade

This chapter examines the law of the Philippines on contractual interpretation and the regulation of unfair terms. With regard to the former, it discusses two closely connected issues in defining the contents of contracts: the approaches adopted in interpreting the meaning of agreed contractual terms, as well as to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, good faith, and the negotiations of the parties; and it shows how the law of the Philippines resolves the tension between literalist and contextualist approaches to interpretation. With regard to the latter, the chapter details the various responses available to tackle extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation targeted at terms in consumer contracts. Attention is also paid to the enforcement mechanisms for measures of consumer protection. The chapter further analyses how the courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural unfairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical scenarios illustrate how the courts in the Philippines deal with issues of contractual interpretation and gap-filling and how they regulate unfair terms in practice.

Contract Interpretation and Unfair Terms in Vietnamese Contract Law

2020 ◽  
pp. 447-476
Author(s):  
NGUYEN Hung Quang ◽  
NGUYEN Thuy Duong
Keyword(s):  
Contract Law ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
The Law ◽  
Enforcement Mechanisms ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines the law of Vietnam on contractual interpretation and the regulation of unfair terms. With regard to the former, it discusses two closely connected issues in defining the contents of contracts: the approaches adopted in interpreting the meaning of agreed contractual terms, as well as to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, good faith, and the negotiations of the parties; and it shows how the law of Vietnam resolves the tension between literalist and contextualist approaches to interpretation. With regard to the latter, the chapter details the various responses available to tackle extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation targeted at standard terms and consumer contracts. Attention is also paid to the enforcement mechanisms for measures of consumer protection. The chapter further analyses how the courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural unfairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical scenarios illustrate how the Vietnamese courts deal with issues of contractual interpretation and gap-filling and how they regulate unfair terms in practice.

Contractual Interpretation and Protection against Unfair Terms in Indonesia

2020 ◽  
pp. 135-160
Author(s):  
Gary F Bell
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Judicial Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Enforcement Mechanisms ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines the Indonesian law on contractual interpretation and the regulation of unfair terms. With regard to the former, it discusses two closely connected issues in defining the contents of contracts: the approaches adopted in interpreting the meaning of agreed contractual terms, as well as to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, good faith, and the negotiations of the parties; and it shows how Indonesian law resolves the tension between literalist and contextualist approaches to interpretation. With regard to the latter, the chapter shows that Indonesian contract law has only limited responses available to tackle extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, targeted exclusively at standard terms in consumer contracts. Attention is also paid to the enforcement mechanisms for measures of consumer protection. The chapter further analyses how the Indonesian courts have exercised a control by employing traditional general contract law doctrines such as good faith and equity, including the rules on interpretation, in order to protect parties against the imposition of unfair terms. A number of hypothetical scenarios illustrate how the courts in Indonesia deal with issues of contractual interpretation and gap-filling and how they regulate unfair terms in practice.

The Regulation of Unfair Terms and Consumer Protection in Japan

2020 ◽  
pp. 186-206
Author(s):  
Hiroyuki KIHARA
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Japanese contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Japanese courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Japanese courts regulate unfair contract terms in practice.

The Regulation of Unfair Terms in Indian Contract Law: Past, Present, and Future

2020 ◽  
pp. 111-134
Author(s):  
Stelios Tofaris
Keyword(s):  
Contract Law ◽  
Judicial Control ◽  
Contract Formation ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Indian contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Indian courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation and interpretation or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Indian courts regulate unfair contract terms in practice.

Regulation of Unfair Terms under Korean Law

2020 ◽  
pp. 224-241
Author(s):  
Tae-Yong Ahn
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Korean contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Korean courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Korean courts regulate unfair contract terms in practice.

Contract Terms in Hong Kong

2020 ◽  
pp. 62-91
Author(s):  
Stephen Hall
Keyword(s):  
Hong Kong ◽  
Contract Law ◽  
Judicial Control ◽  
Contract Formation ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines three closely connected issues in defining the contents of contracts in Hong Kong: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, second, to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, and the negotiations of the parties; and it shows how Hong Kong law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Hong Kong courts deal with issues of contractual interpretation and gap-filling in practice. Third, this chapter examines how Hong Kong law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation and interpretation or the rules on procedural fairness, in order to protect parties against unfair terms. Hypothetical cases are discussed to illustrate how unfair contract terms are regulated in practice.

Regulating Unfair Terms and Consumer Protection

2020 ◽  
pp. 361-378
Author(s):  
Sandra BOOYSEN
Keyword(s):  
Contract Law ◽  
Judicial Control ◽  
Contract Formation ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Singapore contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Singapore courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Singapore courts regulate unfair contract terms in practice.

Unfair Contract Terms and Consumer Protection: Legislative and Judicial Controls in Malaysia

2020 ◽  
pp. 260-283
Author(s):  
Wai Meng CHAN ◽  
Pek San TAY
Keyword(s):  
Contract Law ◽  
Judicial Control ◽  
Contract Formation ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Practice Standard ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Malaysian contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Malaysian courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Malaysian courts regulate unfair contract terms in practice, standard terms, consumer contracts, exemption clause

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