Doctrine and fairness in the law of contract

Legal Studies ◽  
2009 ◽  
Vol 29 (4) ◽  
pp. 534-575
Author(s):  
Andrew Phang
Keyword(s):  
Tipping Point ◽  
Central Theme ◽  
Undue Influence ◽  
Common Mistake ◽  
Rules And Principles ◽  
The Law

This paper explores, through illustrations from the law of contract, the important central theme to the effect that the rules and principles, which constitute the doctrine of the law, are not ends in themselves but are, rather, the means through which the courts arrive at substantively fair outcomes in the cases before them. The paper focuses on the concept of ‘radicalism’, which relates to the point at which the courts decide that it is legally permissible to hold that a contract should come to an end because a radical or fundamental ‘legal tipping point’ has not only been arrived at but has, in fact, been crossed. It explores the role of this concept as embodied in the doctrines of frustration, common mistake, discharge by breach, as well as fundamental breach in the context of exception clauses – in particular, how ‘radicalism’ with regard to these doctrines can be viewed from the (integrated) perspectives of structure, linkage and fairness. The paper also touches briefly on linkages amongst the doctrines of economic duress, undue influence and unconscionability, as well as the ultimate aim these doctrines share of achieving fair outcomes in the cases concerned.

15. Undue Influence, Unconscionability, and Equality of Bargaining Power

2021 ◽  
pp. 500-533
Author(s):  
André Naidoo
Keyword(s):  
Consumer Protection ◽  
Bargaining Power ◽  
Case Law ◽  
Third Party ◽  
Undue Influence ◽  
The Third ◽  
The Law

This chapter examines undue influence, which is largely about pressure and influence arising from a relationship. It begins with the basic role of the law on undue influence before moving to the substantive case law. The case law is divided into three categories, which are based on the different ways of proving undue influence. The first relates to what is known as ‘actual undue influence’, which is where a complainant proves undue influence. The second is where undue influence between two parties can be presumed from the circumstances. The third category has been a major problem in modern cases and it involves undue influence coming from a third party. The chapter then turns to the wider issues that complete the ‘bigger picture’. The first of these is the area often referred to as ‘unconscionability’, which is about the exploitation of weakness. The second is the attempt to create a wider ‘inequality of bargaining power’ principle. Finally, the chapter looks at the Consumer Protection from Unfair Trading Practices Regulations 2008, which can cover conduct otherwise classed as duress, undue influence, and harassment.

19. Undue Influence

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Third Party ◽  
Undue Influence ◽  
The Law

This chapter discusses cases of alleged undue influence. Such cases have caused considerable difficulties for the courts in recent years, not in relation to the existence of the doctrine, but to its scope and its relationship with other doctrines, particularly duress, and other cases in which courts have intervened to protect the vulnerable or those who have been exploited. Recent judicial exposition of undue influence has tended to take place in the context of three-party cases rather than two-party cases, that is to say cases in which a wrong has been committed by a third party and not the defendant. Two leading cases of undue influence are analysed: Allcard v. Skinner (1887) 36 Ch D 145 and Royal Bank of Scotland plc v. Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 and they are used to illustrate the limits of the modern doctrine of undue influence and in particular the role of presumptions in this area of the law.

19. Undue Influence

Contract Law ◽  
2020 ◽  
pp. 635-661
Author(s):  
Ewan McKendrick
Keyword(s):  
Third Party ◽  
Undue Influence ◽  
The Law

This chapter discusses cases of alleged undue influence. Such cases have caused considerable difficulties for the courts in recent years, not in relation to the existence of the doctrine, but to its scope and its relationship with other doctrines, particularly duress, and other cases in which courts have intervened to protect the vulnerable or those who have been exploited. Recent judicial exposition of undue influence has tended to take place in the context of three-party cases rather than two-party cases, that is to say cases in which a wrong has been committed by a third party and not the defendant. Two leading cases of undue influence are analysed: Allcard v. Skinner (1887) 36 Ch D 145 and Royal Bank of Scotland plc v. Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 and they are used to illustrate the limits of the modern doctrine of undue influence and in particular the role of presumptions in this area of the law.

Pengatuan Hukum Terhadap Narkotika Jenis-Jenis Baru yang Belum Terdaftar

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Rizky Maulana Hakim
Keyword(s):  
Hazardous Materials ◽  
Legal Certainty ◽  
Next Generation ◽  
The Law

We realize that in the community, it is still close to the night world which can plunge the nation's next generation, through drinking, gambling, and especially Narcotics. There are many rules related to this problem, it is still possible that the minimum knowledge of the community is what causes users to become victims of the rigors of using drugs.In discussing this paper, we will take and discuss the theme of "Legal Certainty and Role of Laws on Narcotics (Narcotics and Drugs / Hazardous Materials) by Users and Distributors." The purpose of accepting this paper is, first, to be agreed by the reader which can be understood about the dangers that need to be discussed regarding the subjectivity of the drug itself; secondly, asking the reader to get a clue about actually addressing the urgency about the distribution of drugs; round, which is about knowing what the rules of the law and also the awareness in the surrounding community.Keywords: Narcotics, Role of Laws, Problem, Minimum Knowledge, awareness

The Role of Women in Pursuing Scottish Criminal Actions, 1580–1650

2020 ◽  
Vol 24 (2) ◽  
pp. 232-250
Author(s):  
Stephanie Dropuljic
Keyword(s):  
Early Modern ◽  
Legal History ◽  
Criminal Court ◽  
Current Understanding ◽  
The Law ◽  
Role Of Women

This article examines the role of women in raising criminal actions of homicide before the central criminal court, in early modern Scotland. In doing so, it highlights the two main forms of standing women held; pursing an action for homicide alone and as part of a wider group of kin and family. The evidence presented therein challenges our current understanding of the role of women in the pursuit of crime and contributes to an under-researched area of Scots criminal legal history, gender and the law.

Neoliberalism, Law and its Discontents: Three Recent Interventions

2020 ◽  
Vol 23 (2) ◽  
Author(s):  
Ravi Malhotra
Keyword(s):  
New York ◽  
Princeton University ◽  
The Law

Honor Brabazon, ed. Neoliberal Legality: Understanding the Role of law in the neoliberal project (New York: Routledge, 2017). 214pp. Paperback.$49.95 Katharina Pistor. The Code of Capital: How the Law Creates Wealth and Inequality (Princeton: Princeton University Press, 2019). 297 pp. Hardcover.$29.95 Astra Taylor. Democracy May Not Exist, but We'll Miss It When It's Gone (New York: Metropolitan Books--Macmillan, 2019). Hardcover$27.00

Prawne aspekty eutanazji w Holandii

2016 ◽  
Vol 14 (3) ◽  
pp. 243-253
Author(s):  
Grzegorz Stefanowicz
Keyword(s):  
The Netherlands ◽  
Assisted Suicide ◽  
Public Authority ◽  
Dutch Society ◽  
On Demand ◽  
Limited Length ◽  
The Law ◽  
Death On Demand ◽  
The Way

This article undertakes to show the way that has led to the statutory decriminalization of euthanasia-related murder and assisted suicide in the Kingdom of the Netherlands. It presents the evolution of the views held by Dutch society on the euthanasia related practice, in the consequence of which death on demand has become legal after less than thirty years. Due attention is paid to the role of organs of public authority in these changes, with a particular emphasis put on the role of the Dutch Parliament – the States General. Because of scarcity of space and limited length of the article, the change in the attitudes toward euthanasia, which has taken place in the Netherlands, is presented in a synthetic way – from the first discussions on admissibility of a euthanasia-related murder carried out in the 1970s, through the practice of killing patients at their request, which was against the law at that time, but with years began more and more acceptable, up to the statutory decriminalization of euthanasia by the Dutch Parliament, made with the support of the majority of society.

Population Control (Review Article)

1961 ◽  
Vol 1 (3) ◽  
pp. 89-98
Author(s):  
Karol J. Krotki
Keyword(s):  
Population Control ◽  
Review Article ◽  
Small Enterprise ◽  
Opportunity Costs ◽  
Relative Importance ◽  
Factual Information ◽  
Undue Influence ◽  
Clear Cut ◽  
Economic Considerations

Discussions about the role of small enterprise in economic development tend to remain inconclusive partly because of the difficulty of assessing the relative importance of economic and non-economic objectives and partly because of the dearth of factual information on which to base an economic calculus. It is probably true, moreover, that, because of a lack of general agreement as to the economic case for or against small enterprise, non-economic considerations, including some merely romantic attitudes toward smallness and bigness, tend to exert an undue influence on public policies. There may, of course, be no clear-cut economic case. And noneconomic considerations should and will inevitably weigh significantly in policy decisions. If, however, some of the economic questions could be settled by more and better knowledge, these decisions could more accurately reflect the opportunity costs of pursuing non-economic objectives.

Peran Notaris/PPAT Dalam Pembuatan Surat Kuasa Membebankan Hak Tanggungan Dalam Perjanjian Kredit Pemilikan Rumah (Studi Di Pt. Bank Tabungan Negara Tbk. Cabang Cirebon)

Jurnal Akta ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 1
Author(s):  
Yusup Sugiarto ◽  
Gunarto Gunarto
Keyword(s):  
Descriptive Analysis ◽  
Civil Law ◽  
Power Of Attorney ◽  
The Law ◽  
Credit Agreement

ABSTRAKKebutuhan akan lembaga notariat tidak terlepas dari kebutuhan akan perlunya pembuktian tertulis dalam lapangan hukum perdata. Mengingat keadaan ini maka notaris tidak saja berperan sebagai orang yang membuat alat bukti autentik namun juga sebagai penemu hukum. Notaris dalam profesinya sesungguhnya merupakan instansi yang dengan akta-aktanya menimbulkan alat-alat pembuktian tertulis dengan mempunyai sifat autentik. Penelitian ini bertujuan untuk menganalisis pelaksanaan penandatanganan akta notaris dalam pembuatan SKMHT dan akibat hukum penandatanganan akta SKMHT oleh penerima kuasa tidak di hadapan notaris dalam perjanjian kredit pemilikan rumah. Metode yang digunakan dalam penelitian ini adalah pendekatan yuridis normatif, sedangkan sifat dari penelitiannya sendiri bersifat deskriptif analisis. Penandatanganan akta notaris oleh penerima kuasa dalam akta SKMHT dimungkinkan untuk dilakukan tidak di hadapan notaris, karena lazimnya suatu akta SKMHT ada kaitannya dengan akta perjanjian kredit yang telah dibuat terlebih dahulu oleh para pihak. Akibat hukumnya penerima kuasa dalam akta SKMHT menjadi terikat untuk mematuhi ketentuan-ketentuan yang ada dalam SKMHT.Kata kunci: notaris, akta, perdata, kredit, perjanjian. ABSTRACTThe need for notarial institutions is inseparable from the need for the necessity of verification in the field of civil law. In view of this situation the notary not only plays the role of the person who makes authentic evidence but also the inventor of the law. Notary in his profession is in fact an institution which with its deeds evokes written proof means with authentic nature. This study aims to analyse the execution of the signing of notary deed in the making of SKMHT and the effect of the signing of SKMHT deed by the power of attorney not before the notary in the mortgage agreement. The method used in this study is the normative juridical approach, while the nature of the research itself is descriptive analysis. The signing of notarial deed by the power of attorney in the deed of SKMHT is possible to be done not in the presence of a notary, because usually a deed of SKMHT is related to the credit agreement which has been made beforehand by the parties. As a result of the law the power of attorney in the SKMHT deed becomes bound to comply with the provisions contained in SKMHT.Keywords: notary, deed, civil, credit, agreement.

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