Relevant bibliographies by topics / Unconscionable conduct

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Academic literature on the topic 'Unconscionable conduct'

Author: Grafiati
Published: 11 December 2022
Last updated: 26 January 2023

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Journal articles on the topic "Unconscionable conduct"

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Zumbo, Frank. "Australia Prohibits Unconscionable Commercial Conduct." Business Law Review 20, Issue 3 (March 1, 1999): 66–69. http://dx.doi.org/10.54648/bula1999019.

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Chan, Sean. "Future-Proof Doctrine or Relic of an Equitable Past? Unconscionable Conduct in the Fair Trading Amendment Act 2021." Victoria University of Wellington Law Review 53, no. 2 (August 29, 2022): 185–218. http://dx.doi.org/10.26686/vuwlr.v53i2.7708.

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The Fair Trading Amendment Act 2021 introduced a New Zealand prohibition on "unconscionable conduct" in trade. Previously, the law on unconscionable conduct was found in the equitable doctrine of unconscionable bargain. This article describes how New Zealand law has moved away from equitable unconscionability with this new prohibition. This article critically analyses some of the legal, social and economic justifications for introducing the prohibition, finding that some of the Ministry of Business, Innovation and Employment's justifications are not persuasive. The s 7 prohibition is based strongly on an equivalent section in the Australian Competition and Consumer Act 2010 (Cth). It is argued that long-standing doctrinal issues with Australia's prohibition provided a strong basis for New Zealand to pursue a different standard. Finally, this article explores the "unfair commercial practices" doctrines in the United States and European Union through the lens of anti-consumer practices in digital marketplaces. The conclusion is that the unfair commercial practices doctrine captures a wider range of anti-consumer conduct than does unconscionable conduct.
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Milne, Patrick. "Proprietary Estoppel and the Element of Unconscionable Conduct." Cambridge Law Journal 56, no. 1 (March 1997): 34–37. http://dx.doi.org/10.1017/s0008197300017669.

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Finlay, Anne. "Unconscionable Conduct and the Business Plaintiff: Has Australia Gone Too Far?" Anglo-American Law Review 28, no. 4 (October 1999): 470–502. http://dx.doi.org/10.1177/147377959902800405.

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Muchlinski, Peter. "‘Caveat Investor’? The Relevance of the Conduct of the Investor Under the Fair and Equitable Treatment Standard." International and Comparative Law Quarterly 55, no. 3 (July 2006): 527–58. http://dx.doi.org/10.1093/iclq/lei104.

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AbstractThe role that investor conduct plays in applying the fair and equitable treatment standard is relatively unexplored. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this article suggests that investor conduct is an important consideration. Investor duties are being accepted in relation to the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably. These requirements may be said to lead to a new limit upon the fair and equitable treatment standard encapsulated in the phrase ‘Caveat Investor’.
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Spears, Charlotte. "Consumer Protection: Online Sale of Prescription Drugs to Minors Not Unconscionable." Journal of Law, Medicine & Ethics 30, no. 2 (2002): 315–17. http://dx.doi.org/10.1017/s1073110500008561.

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In Stovall v. Confimed.com, the Kansas Supreme Court held that an out-of-state medical doctor who sold a prescription drug to a Kansas minor over the Internet did not commit an unconscionable act under the Kansas Consumer Protection Act (KCPA). The Shawnee Country District Court had enjoined the doctor from prescribing or dispensing prescription medicine within the state of Kansas, and the doctor appealed the injunction to the Kansas Supreme Court. The Supreme Court affirmed the district court's decision to grant injunctive relief, but found no unconscionable conduct under the KCPA.The appellee, Washington physician Dr. Howard J. Levine, sold the sexual enhancement drug Viagra over the Internet through his online pharmacy. Neither the physician nor the online pharmacy was licensed to practice in Kansas. The purchasers were two Kansas residents, one of whom was a minor. Both purchased the drugs in a sting operation conducted by the Kansas Attorney General and received the drugs after completing an online application.
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Eldridge, John. "LAWFUL-ACT DURESS AND MARITAL AGREEMENTS." Cambridge Law Journal 77, no. 1 (March 2018): 32–35. http://dx.doi.org/10.1017/s0008197318000211.

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IN Thorne v Kennedy [2017] HCA 49, the High Court of Australia was presented with an opportunity to consider the operation and intersection of undue influence, unconscionable conduct and duress in the context of marital agreements. Despite hopes that the Court would seize the chance to resolve an important open question in respect of duress, the decision was instead marked by an unhelpful caution, offering little guidance on the law's future development.
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Paterson, Jeannie Marie, and Gerard Brody. "“Safety Net” Consumer Protection: Using Prohibitions on Unfair and Unconscionable Conduct to Respond to Predatory Business Models." Journal of Consumer Policy 38, no. 3 (November 9, 2014): 331–55. http://dx.doi.org/10.1007/s10603-014-9276-y.

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Halliwell, Margaret. "Estoppel: unconscionability as a cause of action." Legal Studies 14, no. 1 (March 1994): 15–34. http://dx.doi.org/10.1111/j.1748-121x.1994.tb00563.x.

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The current distinctions between different forms of estoppel are inappropriate and traditional orthodoxy is being challenged by judges and by academics. It is now necessary to recognise that the organising concept for the doctrine of estoppel is unconscionability because the function of estoppel is to restrain injustice arising from unconscionable conduct. The form ofestoppel, known as promissory estoppel, and stemming from the decision in Central London Property Ltd u High Trees House Ltd, is not triggered by the organising concept of unconscionability. It should be regarded, therefore, as an exceptional contractual response, in various situations, to the requirement of consideration. It follows that, in principle, estoppel based upon the concept of unconscionability, may be employed as an independent cause of action. There is ample evidence that this already happens in the context of claims concerning land. This article seeks to demonstrate that estoppel can and should be treated as an independent cause of action in a more general context.
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Latimer, Paul. "It's Time for Federal Regulation of Retirement Villages." Federal Law Review 45, no. 3 (September 2017): 469–93. http://dx.doi.org/10.22145/flr.45.3.5.

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As Australia's population ages, increasing numbers of seniors move to a growing number of retirement villages. Unlike time shares, which are ‘managed investment schemes’ and therefore regulated as ‘financial products’ under corporate law administered nationally by the Australian Securities and Investments Commission (ASIC), the Commonwealth withdrew from the regulation of retirement villages in the 1980s on the basis that at that time they were local, usually run by religious bodies and charities and were not of national concern. The regulation of retirement villages was taken over by the states and territories under their non-uniform Retirement Villages Acts and the common law. Until then retirement villages, often indistinguishable from Commonwealth regulated timeshares, were regulated in the original State and Territory Uniform Companies Acts in 1961 as ‘interests’, and then in later Commonwealth legislation as ‘prescribed interests’ by the forebear of ASIC, the then National Companies and Securities Commission (NCSC) with the State and Territory Corporate Affairs Commissions as its ‘delegates’. Today retirement villages, which are largely owned and managed by the corporate sector, raise many issues of national concern such as accountability, fees and the rights of residents. Some aspects of retirement villages such as directors’ duties, fundraising, prospectuses and unregistered schemes are regulated as corporations by ASIC under the Corporations Act 2001 (Cth), but retirement villages are not regulated as ‘financial products’ under corporate law. This article challenges the effectiveness of state and territory regulation of retirement villages and calls for federal regulation of retirement villages by bringing retirement villages into the definition of ‘financial product’ in the Corporations Act 2001 (Cth) and in the Australian Securities and Investments Commission Act 2001 (Cth). As financial products, retirement villages would then be regulated by Commonwealth legislation which deals with financial services and financial markets, as regulated by ASIC. These laws include consumer protection provisions such as the prohibition of misleading or deceptive conduct, unfair contract terms, unconscionable conduct, licensing and high standards for those in the retirement village industry. This would result in a return to Commonwealth leadership of the regulation of retirement villages to harmonise and to consolidate the current mix of state and territory regulation with federal legislation including an enforceable Retirement Villages Code of Conduct.
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Dissertations / Theses on the topic "Unconscionable conduct"

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Rheeders, Anjo. "The international interpretation of unconscionable conduct and the unconscionability factors contained in section 40 of the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53182.

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This dissertation interprets the meaning and application of the concept unconscionable conduct as well as the factors that constitute unconscionability, contained in section 40(1) of the Consumer Protection Act 68 of 2008 (CPA), by comparing consumer laws and definitions from different countries with South Africa. This dissertation illustrates that the generic term unconscionable conduct is not well known in South Africa, despite the provision thereof in the CPA. There is consequently uncertainty regarding this concept and it is therefore necessary to include a more in depth definition and explanation. The dissertation furthermore attempts to establish concrete definitions for the unconscionability factors such as, physical force against a consumer, coercion, undue influence, pressure, duress or harassment and unfair tactics. These factors are not defined anywhere in the CPA and well-constructed definitions will reduce uncertainty and interpretation problems Two conclusions can be drawn from this dissertation: Firstly, that the concept of unconscionable conduct must be expanded, improved and explained. This will ensure that all suppliers know the consequences of unconscionability and that the consumer can have the peace of mind to know they will be protected under all circumstances. Secondly, that the CPA must be improved with regards to the factors of unconscionability. By removing unnecessary factors and providing concrete definitions to the remaining factors will ensure that the entire concept is easier to understand and apply.
Mini Dissertation (LLM)--University of Pretoria, 2015.
Mercantile Law
LLM
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Buchan, Jennifer Mary. "Franchisor failure : an assessment of the adequacy of regulatory response." Thesis, Queensland University of Technology, 2010. https://eprints.qut.edu.au/39027/1/Jennifer_Buchan_Thesis.pdf.

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Franchisor failure is one of the most problematic areas of the franchise relationship. It impacts negatively on landlords and other suppliers, but the contracting parties that are currently without legal rights to respond when a franchisor fails, and thus without consumer protection, are its franchisees. In this thesis I explore the current contractual, regulatory and commercial environment that franchisees inhabit, within the context of franchisor failure. I conclude that ex ante there are opportunities to level the playing field through consumer protection legislation. I also conclude that the task is not one solely for the consumer protection legislation; the problem should also be addressed ex post through the Corporations Act.
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Books on the topic "Unconscionable conduct"

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T, Vout Paul, ed. Unconscionable conduct: The laws of Australia. 2nd ed. Pyrmont, N.S.W: Thomson Reuters, 2009.

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Unconscionable conduct: The laws of Australia. 2nd ed. Pyrmont, N.S.W: Thomson Reuters, 2009.

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Ben, McFarlane. The Law of Proprietary Estoppel. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198814870.001.0001.

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This book provides a comprehensive and practically structured resource on the doctrine of proprietary estoppel. It offers answers to a number of difficult problems arising in recent litigation and guidance on managing proprietary estoppel cases. Relevant authorities are set out in an accessible format addressing issues that arise in practice, such as ‘reasonable reliance’, ‘unconscionable conduct’, and ‘satisfying the equity’. The long-standing doctrine of proprietary estoppel has come to prominence in recent years—it is regularly discussed by courts at all levels and is frequently pleaded by litigants wishing to show that they have informally acquired an interest in land. There is also much debate regarding the relationship between proprietary estoppel and other doctrines, such as constructive trusts and unjust enrichment. A problem faced by anyone seeking to make, or respond to, a proprietary estoppel claim is that the law is to be found almost entirely in cases. This second edition provides a clear structure with which to understand the law. It draws together all of the relevant scholarship on proprietary estoppel and makes reference to useful cases from outside the jurisdiction of England and Wales to aid understanding of the law and related doctrines.
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Book chapters on the topic "Unconscionable conduct"

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"Unconscionable conduct." In Australian Commercial Law, 444–67. 2nd ed. Cambridge University Press, 2020. http://dx.doi.org/10.1017/9781108629003.021.

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HO, Lusina. "Reprehensible Conduct: Threats and Unfair Exploitation in Hong Kong." In Invalidity, 87–104. Oxford University PressOxford, 2022. http://dx.doi.org/10.1093/oso/9780192859341.003.0005.

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Abstract This chapter discusses the doctrines of duress, undue influence and unconscionable bargain, with a particular focus on how Hong Kong law has evolved from its English heritage. The doctrine of duress in Hong Kong law broadly follows that in England, and requires the entry into a transaction as the result of illegitimate pressure. Such pressure is typically exerted through unlawful threats, though lawful threats that go far beyond reasonable pressure also suffice. In relation to undue influence, Hong Kong differs from English law in not relying on presumptions to establish such influence, but instead considers the ‘totality of evidence’ to decide whether undue influence has been exercised. As regards unconscionable bargain, Hong Kong accepts a broader scope of relief for parties in a ‘serious disadvantage’, and does not confine itself to the English doctrine that requires the party concerned to be ‘poor and ignorant’. The common law position is also reinforced by the Unconscionable Contracts Ordinance, which is drawn upon consumer protection legislation in Australia, and has been interpreted in line with the latest Australian statute.
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Beatson, Jack, Andrew Burrows, and John Cartwright. "10. Duress, Undue Influence, and Unconscionable Bargains." In Anson's Law of Contract, 371–404. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198829973.003.0010.

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This chapter discusses the nature and operation of duress, undue influence, and unconscionable bargains. Duress and undue influence occur where one party to a contract has coerced the other or exercised such domination that the other’s independence of decision was substantially undermined. In the limited category of cases in which the doctrine of unconscionable bargains operates, it is necessary to show not only that the process by which the contract was made was unfair but that there is contractual imbalance, i.e., the doctrine extends to the actual substance of the contract and the fairness of its terms. Conduct which constitutes duress or undue influence by a trader against a consumer may also constitute a ‘prohibited practice’ under the Consumer Protection from Unfair Trading Regulations 2008, which will give the consumer ‘rights to redress’ under the Regulations.
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Davies, Paul S., and Graham Virgo. "7. Constructive Trusts." In Equity & Trusts, 325–60. Oxford University Press, 2019. http://dx.doi.org/10.1093/he/9780198821830.003.0007.

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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on constructive trusts, which arise by operation of law without regard to the intentions of the parties. They are triggered by a defendant’s unconscionable conduct; however, in some cases, a constructive trust will be recognized even though the defendant has not acted unconscionably, such as the constructive trust that arises once a contract to sell land has been made. A remedial constructive trust is recognized by some jurisdictions, whereby equitable proprietary rights arise through the exercise of judicial discretion, but such a trust is not recognized in England and Wales. As with express trusts, title over particular property that is held on constructive trust is split between trustees and beneficiaries, but a constructive trustee is not subject to the same duties as an express trustee.
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Pearce, Robert, and Warren Barr. "9. Constructive trusts." In Pearce & Stevens' Trusts and Equitable Obligations. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198745495.003.0009.

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This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.
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Barr, Warren, and John Picton. "10. Constructive trusts." In Pearce & Stevens' Trusts and Equitable Obligations, 238–64. Oxford University Press, 2022. http://dx.doi.org/10.1093/he/9780198867494.003.0010.

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This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.
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Ben, McFarlane. "5 Unconscionability." In The Law of Proprietary Estoppel. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780198814870.003.0005.

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This chapter considers whether B separately needs to show unconscionable conduct by A in order to establish a proprietary estoppel. It focuses in particular on A’s conscience. Here, the chapter notes that there is no such independent requirement, but that the concept of unconscionability, in each of two different senses, nonetheless has some role to play in the current law of proprietary estoppel. That role varies between each of the three strands and so they will again be considered separately. In addition, a clear analysis depends on making two important distinctions: first, between two different senses of unconscionability; and secondly, between each of the three different strands of proprietary estoppel set out in the first chapter.
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Virgo, Graham. "9. Constructive Trusts." In The Principles of Equity & Trusts, 271–98. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198854159.003.0009.

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This chapter examines the nature of the constructive trust. It explains that a trust is considered constructive when it arises by operation of law, typically as a result of the defendant’s unconscionable conduct. The chapter discusses the theoretical foundations of constructive trusts and describes different interpretations of the constructive trust, which include institutional and remedial constructive trusts. This chapter also considers the conditions under which institutional constructive trusts will be recognized and explains that, though a constructive trust is a real trust, it does not follow that a constructive trustee is under the same obligations as any other type of trustee. The chapter also examines whether the remedial constructive trust should be recognized in English law or whether a different interpretation of the trust should be recognized involving a modified institutional constructive trust.
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Virgo, Graham. "9. Constructive trusts." In The Principles of Equity & Trusts. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198804710.003.0009.

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This chapter examines the nature of the constructive trust. It explains that a trust is considered constructive when it arises by operation of law, typically as a result of the defendant’s unconscionable conduct. The chapter discusses the theoretical foundations of constructive trusts and describes different interpretations of the constructive trust, which include institutional and remedial constructive trusts. This chapter also considers the conditions under which institutional constructive trusts will be recognized and explains that, though a constructive trust is a real trust, it does not follow that a constructive trustee is under the same obligations as any other type of trustee. The chapter also examines whether the remedial constructive trust should be recognized in English law or whether a different interpretation of the trust should be recognized involving a modified institutional constructive trust.
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"meeting was to discuss an issue different to A’s intended motive, namely, to secure the transfer of an option which B enjoyed over commercial property assigned to A. In the course of this meeting, A gave the impression that he was looking to expand the business run from those premises, when, in fact, he wished to close the business down, provided he was able to secure the transfer of B’s option to himself. As a result of the meeting, B transferred the option to A, but later sought rectification of the written document when A’s real motives were discovered. At first instance, it was held that, since A did not have actual knowledge of B’s mistake, rectification was not possible. However, the Court of Appeal reversed this ruling on the ground that the contract should be performed in accordance with B’s understanding as to what had been agreed. Accordingly, the contract was rectified in the light of A’s unconscionable conduct. In Bates (Thomas) & Son Ltd v Wyndham’s (Lingerie) Ltd, the tenants of premises leased from the plaintiffs, on previous occasions, had contracted for an option to renew the lease at a rental to be fixed by arbitration, in the event of a dispute. The new lease which the parties had entered into did not contain any provision for arbitration. The tenants were aware of the omission, but did not draw the fact to the attention of the plaintiffs. In the event, the court declined to order rectification because there was a chance of some inequitable benefit to the person who was aware of the plaintiff’s mistake: Bates (Thomas) & Son Ltd v Wyndham’s (Lingerie) Ltd [1981] 1 All ER 1077, CA, p 1085." In Sourcebook on Contract Law, 334–35. Routledge-Cavendish, 1995. http://dx.doi.org/10.4324/9781843141518-131.

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