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Inequity in Bargaining Contracts - Assignment Example

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This assignment "Inequity in Bargaining Contracts" analyzes the case of Jack who has been made liable for all the debts incurred by his employer Karen’s Company and is about to lose his home. The writer highlights the major issues and proposes possible solutions…
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Inequity in Bargaining Contracts
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Download file to see previous pages The legislation that may be relevant is the Unfair Contract Terms Act of 1977, the provisions of which may apply for Jack’s contract with the bank.
The traditional laissez-faire approach was based upon the free will agreement of the parties and voluntary assumption of contractual obligations. However the laissez-faire approach is being superseded by a transformative thesis, which has shifted the focus from an individual-centered approach to a more welfare-based approach.1 This is the result of the recognition of the fact that “equality in bargaining power [existing between parties to a contract] was nothing more than an elaborate fiction.”2 In cases where such an inequity in bargaining position has led to an unfair outcome, the Courts have not hesitated to interfere and set such contracts aside3. Can Jack’s contract with the bank also be set aside on such a basis? In the case of Earl of Aylesford v Morris the Court held that if an unconscientious bargain resulted from the contract in question, then the bargaining position of the parties would be a relevant factor and it would be up to the stronger party to demonstrate that the contract was “fair, just and reasonable.”4 The case of Cresswell v Potter5 established the importance of possession of relevant knowledge about a particular transaction to render a particular bargain equitable. Eisenberg has pointed out that in complex transactions – such as Jack’s financial transaction with the bank, an individual may sometimes lack the “aptitude, experience or judgmental ability” to make an intelligent, well-informed decision.6 This lack of transactional knowledge may strongly influence the outcome of the transaction and if a more welfare-based approach is utilized, an imbalance may exist as far as Jack’s interests are concerned in his ability to contract from a well-informed position and thereby provide grounds for setting aside the contract. ...Download file to see next pagesRead More
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