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

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.

The Emperor's Old Clauses: Unincorporated Clauses, Misleading Terms and the Unfair terms in Consumer Contracts Regulations

1999 ◽  
Vol 58 (2) ◽  
pp. 413-436 ◽  
Author(s):  
Elizabeth Macdonald
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Legal Rights ◽  
Director General ◽  
Effective Protection ◽  
Legal Effect ◽  
Consumer Contracts ◽  
The Common ◽  
Unfair Terms

CONSUMERS frequently do not know of their rights and are unwilling to litigate. The powers of the Director General of Fiar Trading under the Unfair Terms in Consumer Contracts Regulations 1994 will often provide more effective protection for the consumer than common law rules. The powers are pre-emptive and enable unfair terms to be removed from standard form contracts, so that consumers simply cease to encounter such terms. Some protection may be provided for consumers by common law rules which allow a finding that clauses are not incorporated or that they do not have the legal effect which they may appear to the consumer to have. However, without knowledge or a willingness to litigate, consumers may be misled by such clauses and terms as to the legal rights generated aand they will not then be able to enjoy their rights to the full. This article examines the extent to which the powers of the Director General can be used to protect consumers from such misleading clauses and terms. It considers the interaction of the Regulations and the common law, the scope of the Regulations, and the application of the Regulation's test of fairness.

6. Exemption Clauses and Unfair Terms

2020 ◽  
pp. 183-230
Author(s):  
Jack Beatson ◽  
Andrew Burrows ◽  
John Cartwright
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Trade Association ◽  
Consumer Rights ◽  
Legislative Control ◽  
Consumer Contracts ◽  
The Common ◽  
Special Rules ◽  
Unfair Terms ◽  
Statutory Control

This chapter discusses the common law and statutory rules governing exemption clauses, and the control of unfair terms. Written contracts frequently contain clauses excluding or limiting liability. This is particularly so in the case of ‘standard form’ documents drawn up by one of the parties or a trade association to which one of the parties belong. At common law there are special rules on the incorporation of exemption clauses, special rules of construction applicable to them, and a few miscellaneous other common law rules designed to control them. The chapter first considers those common law rules before going on to the legislative control of exemption clauses and unfair terms. The focus of the discussion of statutory control is the Unfair Contract Terms Act 1977 for non-consumer contracts, and the Consumer Rights Act 2015 for consumer contracts.

Bona fides and ubuntu – A response to Dale Hutchison

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 85-106
Author(s):  
J Barnard-Naudé
Keyword(s):  
South African ◽  
Common Law ◽  
Standard Form ◽  
Contract Law ◽  
Law School ◽  
Point Of View ◽  
Long Time ◽  
School Faculty ◽  
The Common ◽  
Faculty Meeting

This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.

13. Misrepresentation

2021 ◽  
pp. 414-470
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
The Impact

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.

Part I International Sales Governed by English Law, 9 Remedies: Termination and Damages

2017 ◽  
Author(s):  
Bridge MG
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Breach Of Contract ◽  
The Common ◽  
Penalty Clauses ◽  
English Law ◽  
International Sale Of Goods ◽  
International Sales ◽  
Statutory Basis

This chapter deals with remedies for breach of contract to the extent that they have a particular application to international sale of goods agreements. Attention is given to termination for breach and damages. Even here, however, certain aspects (for example, penalty clauses) are left to general works on contract and sale of goods. This chapter also examines clauses in standard form contracts dealing with the quantification of money awards; they commonly depart from the common law and statutory basis for assessing damages. In addition, though they fall outside breach of contract, the chapter also looks to certain settlement clauses, operative in the event of an insolvency or of a circle appearing in the sales string.

scholarly journals Parochial Procedure

2018 ◽  
Author(s):  
Maggie Gardner
Keyword(s):  
International Law ◽  
Path Dependence ◽  
Common Law ◽  
Federal Courts ◽  
Institutional Capacity ◽  
Access To Justice ◽  
Forum Non Conveniens ◽  
The Common ◽  
Over Time

69 Stanford Law Review 941 (2017)The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results.This Article challenges that assumption. I argue instead that parochial doctrines can develop even in the absence of parochial judges. Our sometimes-parochial procedure may be the unintended result of decisionmaking pressures that mount over time within poorly designed doctrines. As such, it reflects not so much the personal views of individual judges, but the limits of institutional capacity, the realities of behavioral decisionmaking, and the path dependence of the common law. This Article shows how open-ended decisionmaking in the midst of complexity encourages the use of heuristics that tend to emphasize the local, the familiar, and the concrete. These decisionmaking shortcuts, by disfavoring the foreign, put a parochial thumb on the scale—but that tilt is not limited to individual cases. Rather, it is locked in and amplified through the accumulation of precedent, as later judges rely on existing decisions to resolve new cases. Over time, even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law.To explore this theory, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The decisionmaking pressures outlined here can explain why the first two (framed as open-ended standards) are often criticized as parochial while the latter two (framed in more rule-like terms) are not. And if that account is at least plausible, it supports the primary claim of the Article: that the occasional parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.

6. Exemption clauses and unfair contract terms

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’.

Access to Information and Evidence

2021 ◽  
pp. 136-173
Author(s):  
European Law
Keyword(s):  
European Union ◽  
Common Law ◽  
Civil Law ◽  
Relevant Information ◽  
Civil Procedure ◽  
Access To Justice ◽  
Access To Information ◽  
The European Union ◽  
The Common ◽  
Law Of Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

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