Neutral Choice of Law in E-Consumer Contracts : The Common Law Approach in the US 2nd Restatement

This chapter explains the law relating to the requirements and remedies for misrepresentation. The rules that the chapter covers developed originally in the context of all types of contracts. However, more recent legislation has introduced some specific protection for consumers. Consequently, the common law rules and older legislation that the chapter covers are now more applicable to non-consumer contracts, i.e. contracts between businesses and those between private parties. The chapter starts by addressing the kind of false statements that can result in a remedy. It then addresses the common law and legislative remedies that could be available to the innocent party. Finally, the chapter turns to the impact of the more recent consumer legislation before finally examining the extent to which an exemption clause could cover liability for misrepresentation.

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Contracting out of Access to Justice: Enforcement of Forum-Selection Clauses in Consumer Contracts

McGill Law Journal ◽

10.7202/1040051ar ◽

2017 ◽

Vol 62 (2) ◽

pp. 389-440

Author(s):

Marina Pavlović

Keyword(s):

Common Law ◽

Standard Form ◽

Power Dynamics ◽

Access To Justice ◽

Power Imbalance ◽

Contracting Out ◽

Consumer Contracts ◽

Substantive Justice ◽

The Common ◽

Consumer Relationships

Forum-selection agreements in consumer contracts nominate by default the business’s home jurisdiction to resolve disputes and thus directly impact a consumer’s ability not only to access courts, but also to obtain access to substantive justice. It has been argued that courts should consider enforcing jurisdiction clauses in consumer contracts with “greater scrutiny” because of their inherent power imbalance. To examine how the courts approach forum-selection clauses in consumer contracts, this article analyzed all reported consumer cases involving forum-selection agreements in Canadian common law jurisdictions between 1995 and 2016. The analysis of these cases shows that the courts have failed to exercise the greater scrutiny that was called for. In light of the analysis of the surveyed cases, this article argues that the rules for enforcing forum-selection clauses in consumer contracts ought to be recalibrated to reflect the power dynamics of consumer relationships, the ubiquity of standard-form contracts, and their effect on consumers’ ability to obtain redress. This article proposes two suggestions for reform: legislative intervention to invalidate forum-selection clauses in consumer agreements, and reframing and recalibrating the common law strong-cause test for the enforcement of forum-selection clauses in consumer transactions.

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Reinsurance and Insurance: Choice of Law Under the Common Law

Private International Law of Reinsurance and Insurance ◽

10.4324/9781003122777-15 ◽

2020 ◽

pp. 271-275

Author(s):

Raymond Cox ◽

Louise Merrett ◽

Marcus Smith ◽

Francis Jacobs ◽

Malcolm A. Clarke

Keyword(s):

Common Law ◽

Choice Of Law ◽

Insurance Choice ◽

The Common

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6. Exemption clauses and unfair contract terms

10.1093/he/9780192897336.003.0006 ◽

2021 ◽

pp. 120-141

Author(s):

Jill Poole ◽

James Devenney ◽

Adam Shaw-Mellors

Keyword(s):

Common Law ◽

Critical Test ◽

Essential Information ◽

Consumer Rights ◽

Legislative Regulation ◽

Consumer Contracts ◽

The Common ◽

The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the use and enforceability of exemption clauses (total exclusion or limitation of liability clauses inserted into contracts) and their legislative regulation. Whereas the regulation of such clauses is limited to the common law and UCTA 1977 in the case of commercial contracts (B2B), in the case of consumer contracts (B2C) the law intervenes to control a broader category of terms, ‘unfair contract terms’ (Consumer Rights Act 2015) with the critical test being ‘unfairness’.

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9. Habeas corpus today

Habeas Corpus: A Very Short Introduction ◽

10.1093/actrade/9780190918989.003.0010 ◽

2021 ◽

pp. 92-121

Author(s):

Amanda L. Tyler

Keyword(s):

Great Britain ◽

Supreme Court ◽

Common Law ◽

Armed Conflicts ◽

Habeas Corpus ◽

War On Terrorism ◽

The Us ◽

Us Supreme Court ◽

The Common ◽

Suspension Model

This chapter takes the story of habeas corpus forward to present day, giving special attention to how the writ serves as a vehicle for courts to evaluate a range of immigration matters as well as the legality of the detention of prisoners in modern armed conflicts, including most prominently the war on terrorism. As the chapter reveals, studying how habeas functions in these contexts underscores both the writ’s potential as well as its limitations. The chapter explores in depth how the US Supreme Court has both protected a role for the writ in immigration cases but more recently moved to limiting such a role. It continues by exploring the intersection of terrorism and habeas corpus in both Great Britain and the US, highlighting the continuing influence of the common law writ of habeas corpus and the ever diminishing influence of the English Habeas Corpus Act and suspension model.

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13. Controlling contract terms

Contract Law ◽

10.1093/he/9780198829263.003.0013 ◽

2019 ◽

pp. 371-403

Author(s):

TT Arvind

Keyword(s):

Consumer Protection ◽

Common Law ◽

Freedom Of Contract ◽

Liquidated Damages ◽

Consumer Contracts ◽

The Common ◽

The Law ◽

Unfair Terms ◽

Formal Requirements ◽

Statutory Regulation

This chapter examines how the law regulates contract terms, with particular emphasis on rules that are intended to protect weaker parties. It begins with a discussion of the limits of freedom of contract and proceeds by assessing the role played by formal requirements, such as the requirement that contracts be in writing. It then considers how the law regulates contract terms which seek to alter the liability that one party will have in the event of breach. More specifically, it looks at exclusion clauses in the common law and the statutory regulation of such clauses, along with liquidated damages, contractual remedies, and the rule against penalties. It also explores the extent to which consumer protection law restricts the terms that can be included in consumer contracts, especially when dealing with the problem of unfair terms.

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Part II Constitutional Domain, Ch.8 Common Law

The Oxford Handbook of the Australian Constitution ◽

10.1093/law/9780198738435.003.0009 ◽

2018 ◽

Author(s):

Gummow William

Keyword(s):

Common Law ◽

Choice Of Law ◽

Significant Aspect ◽

History Of ◽

The Common ◽

Federal Jurisdiction

This chapter considers the meaning of the term ‘common law’ and its application in the context of Australian federalism. It discusses some views on common law vis-à-vis the Constitution, as well as the history of the development of common law in Australia. The common law of Australia includes the choice of law rules. The common law choice of law rules select which of the competing State or Territory laws is the lex causae. They apply either directly in the court of the forum, or where federal jurisdiction is exercised, as ‘picked up’ by operation of section 80 of the Judiciary Act 1903 (Cth). A further significant aspect of the development of the common law of Australia is its illustration of the temporal character of the common law.

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European Unfairness and American Unconscionability: A Letter From a European Lawyer to American Friends

European Review of Contract Law ◽

10.1515/ercl-2019-0015 ◽

2019 ◽

Vol 15 (2) ◽

pp. 195-226 ◽

Cited By ~ 1

Author(s):

Anne-Lise Sibony

Keyword(s):

United States ◽

Common Law ◽

The United States ◽

Point Of View ◽

Abuse Of Power ◽

Consumer Contracts ◽

The Common ◽

Similarities And Differences ◽

The Asymmetry ◽

Contracting Process

Abstract The Unfair Contract Terms Directive (UCTD) and the Common Law doctrine of unconscionability in the United States both pursue the same aim: they seek to protect consumers against abuse of power by traders who are in a position to exploit the asymmetry of the contracting process. However, both sets of rules rest on different premises. In particular, they allocate trust differently between courts and markets. This accounts for deep-running differences despite apparent similarities. This contribution analyses these similarities and differences by commenting on the unconscionability doctrine as expressed in the Draft Restatement of consumer contracts from a European point of view.

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Rule and Reason in the Common Law of Foreign Judgments

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900002228 ◽

1999 ◽

Vol 12 (2) ◽

pp. 193-221

Author(s):

Celia Wasserstein Fassberg

Keyword(s):

Public Policy ◽

Procedural Justice ◽

Common Law ◽

Minimal Level ◽

Choice Of Law ◽

The Public ◽

Natural Justice ◽

Foreign Law ◽

The Common ◽

Foreign Judgment

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

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