Unconscionable conduct in Australian consumer and commercial contracts

Dedication
Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
	Chapter 1 Conscience in Contract Law
		Introduction
		Origins of contract law — a brief history
		Will theory
			Freedom as non-interference
			The abstract individual
			The public/private dichotomy
			Strengths and weaknesses of will theory
			Freedom as non-interference
			The abstract individual
			The public/private dichotomy
		Reformulations of will theory
			Charles Fried
			Rick Bigwood
			Dori Kimel
			Freedom as non-domination
			Will theory in modern contract law
		Anatomy of a legally binding contract
			Agreement
			Consideration
			Intention to create legal relations
			Certainty of terms
			Vitiating factors
		Equity in modern contract law
		The relationship between common law and equity
		Defining conscience in modern contract law
		Distinguishing between duress, undue influence and unconscionable conduct
	Chapter 2 Duress
		Elements of duress
		Compulsion of the will
			Objective test
			Rejection of overborne will theory in Australia
			Applied pressure
			Express or implicit threats
			Threats by contracting parties and third parties
			Threats or acts against third parties
			Compulsion
			Indicia of compulsion
				Protest
				No other practical choice
				Independent advice
				Whether took steps to avoid
		Illegitimate pressure
			Unlawful acts
				Physical violence or imprisonment
				Unlawful actual or threatened seizure, detention or interference with goods
				Improper use of legal process
				Non-performance of contractual obligations
				Demands by public officials and money paid under an invalid law
			Lawful acts
				The law pre-Karam
				The law post-Karam
		Consumer protection legislation
			Harassment
			Coercion
			Defences
			Remedies
				Remedy and penalty under ACL and ASIC Act
	Chapter 3 Undue Influence
		Defining undue influence
			Actual undue influence
				Not a free act
				Influence was ‘undue’
		Matters the courts will have regard to in determining undue influence
			Propriety or improvidence of the transaction
			Circumstances surrounding the transaction
			Characteristics of the weaker party and nature of relationship between the parties
		Examples of actual undue influence
			Presumed undue influence
		Relationships of influence
			Presumed relationships of influence
			Actual relationships of influence
		Substantial benefit
			Academic criticism
			Australian law unclear
		Rebutting the presumption
			Examples of presumed undue influence
			Third parties
				Volunteer
				Notice
				Agency
				Principle in Yerkey v Jones
	Chapter 4 Unconscionable Conduct
		Historical origin and rationale
		Twin elements of unconscionable conduct
			Special disability
				Inequality of bargaining power
				Inequality of information
				Inability to read or comprehend English
				Age and physical frailty
				Special disability may be ‘constitutional’ or ‘situational’
			Unconscientiously take advantage
				Knowledge of weaker party’s special disability
				Exploitation
		Rebutting the presumption
		Remedies
		Examples of unconscionable conduct
		Consumer protection legislation
			Legislative boundaries
				ACL does not apply to financial products or services
				Requirement that person ‘engage in conduct’
				Requirement that conduct be ‘in trade or commerce’
			Meaning of ‘unconscionable’ in ss 20 and 12CA
	Chapter 5 Legislative Proscriptions on Unconscionable Conduct, Unjust Contracts and Unfair Terms
		Statutory unconscionable conduct
			Legislative history of the prohibition on unconscionable conduct
			Prohibition on unconscionable conduct
				Scope of prohibition
				Limits of the prohibition
				Meaning of ‘unconscionable’ — the legislation
			Applicable legal principles in assessing impugned conduct
				Defining the evaluative statutory standard
				Applying the evaluative statutory standard
			Examples of unconscionable conduct
			Unconscionable interest and other charges — National Credit Code (NCC)
				Unconscionable interest and other charges
		Unjust contracts
			Scope of the legislation
				Types of transaction
				Focus on contracts not investments
				NCC (s 76) does not apply in certain circumstances
			The court’s three-staged task
			Identifying ‘unjust’ contracts
				Matters to be considered by the court
			Examples of unjust contracts
		Unfair terms
			Legislative history of the UCTL
			Rationale of the UCTL
				Unfair terms void
				Meaning of ‘consumer contract’
				Meaning of ‘small business contract’
				Meaning of ‘standard form contract’
				Meaning of ‘unfair’
				Exclusion
			Examples of unfair terms
	Chapter 6 Remedies and Defences
		Remedies
			Rescission of the contract
				Rescission: an election
				Rescission at common law and in equity
				Rescission in consumer protection legislation
			Damages
				Damages under ACL and ASIC Act
				Enforcement of consumer protection legislation by regulators
				Declarations of wrongdoing
				Injunctions
				Compliance programs
				Adverse publicity orders
				Civil monetary penalties
		Defences
			Affirmation
			Equitable defences
			Time limits under consumer protection legislation
Index