1.0 Introduction According to Black Law Dictionary, unconscionability is a doctrine under which court may deny enforcement of unfair or oppressive contracts because of procedural abuse or substantive abuse arising out of the contract formation, such as terms which violate reasonable expectations of parties or which involve gross disparities in price; either abuse can be the basis for a finding of unconscionability. The general principle for unconscionability is, when one party by some reason of some conditions or circumstances is placed at a special disadvantage regarding an unfair and unconscientious advantage is taken, the court will set aside the transaction on the ground of ‘unconscionable conduct’. It is undeniable that doctrine of unconscionability is a basis for undue influence and both of these doctrines share a lot of similarities. However, the main issue that arises is: whether the doctrine of unconscionability is appropriate to form the underlying basis for a claim of voidable contract on the ground of undue influence. 2.0 Elements for unconscionability In order to answer the issue which is stated above, it is pertinent to discuss the elements of the two doctrines. First we need to discuss the elements of unconscionability. In the case of Fry v Lane , the court suggested that there are three elements to establish unconscionability. First, one party must be at a special disadvantage to the other, for instance, poverty, ignorance or lack of advice. Secondly, this weakness must be exploited by the other party in some morally culpable manner. Thirdly, the resulting transaction must not be merely harsh or improvident, but overreaching and oppressive. When the terms of the contract are so oppressive and outrageous that it... ... middle of paper ... ... I am of the view that the doctrine of unconscionability is not appropriate to form an underlying basis for voidable contract on the ground of undue influence. This is because both of the doctrines embrace different elements and principles and therefore the doctrine of unconscionability is not appropriate to be submerged in the doctrine of undue influence within section 16(3)(a). Both doctrines have evolved quite separately to meet the justice of different factual situations. It is suggested that Malaysia should import a wider ground of doctrine of unconscionability which is independent from the doctrine of undue influence into the Malaysian Contract Law in order to overcome contractual fairness. Quoted by Gopal Sri Ram J in the case of Saad Marwi, Malaysia should adopt the English doctrine of unconscionability and apply it in a broad and liberal way as in Canada.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
In the play Doubt, by John Patrick Shanly, Sister Aloysius is treating Father Flynn unfairly. Sister Aloysius is the principal of St. Nichols School, who is suspicious and always doubt everyone, especially Father Flynn. She thinks that Father Flynn is guilty, but has no proof. Sister Aloysius doesn’t like Father Flynn in the school and his ideas. She treats him unfairly. Sister Aloysius treats Father Flynn unfairly when she still accuses Father Flynn of giving the altar wine to Donald Muller after Father Flynn tells her the truth. She treats him unfairly by forcing him to request the transfer without proving if Father Flynn is guilty or not and also makes him resign by lying about his past.
well-established principles of contract interpretation, the Court finds the exception for "third-party fees" and "fees, fines, and penalties" was not intended to apply to
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Conference persisted in its cries for disestablishment of the established church, re-invigorated by the furore over education. In addition, it condemned Anglican’s growing ‘ritualism’. Disestablishment was a necessary step towards ‘social reform, national education, and complete civil and religious liberty’. In 1912, when a Bill for Welsh disestablishment was in Parliament, Conference passed an almost unanimous resolution of support.
Both the common law and the statutory law have recognized the weaker position of consumers. It is well established an exclusion clause will be valid and enforceable only if it is incorporated in the contract, use clear wordings and does not contravene statutory limits. In order to limit the unfairness resulting from exclusion clauses, the courts have developed certain principles such as the doctrine of non est factum in signature cases, ‘red ink-red hand’ principle in relation to ‘onerous or unusual’ terms, contra proferentem rule when interpreting ambiguous exclusion clauses and ‘fundamental breach’ principle.
This judgment given set criterion which is still been used in the modern court system and due to this case it was developed that an offer of contract can be unilateral and doesn’t have to be made to a specific party only. Also it was developed to that the acceptance of an offer does not require a notification and that once the concerned party purchases the product the contract is active then and there itself. And it was also established that purchase of an item is a fine example of consideration and therefore makes it a valid contract. (Smith, 2000).
The basic law of a contract is an agreement between two parties or more, to deliver a service or a product. And reach a consensus about the terms and conditions that is enforced by law and a contract can be only valid if it is lawful other than that there can’t be a contract. For a contract to exist the parties must have serious intentions, agreement, contractual capacity meaning a party must be able to carry a responsibility, lawful, possibility of performance and formalities. Any duress, false statements, undue influence or unconscionable dealings could make a contract unlawful and voidable.
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
We all do things at home that we would never do at work. It could be smoking, imbibing, and many more actions that are not accepted in the work environment but should we be penalized for doing these things outside of work? This is a great question because in this case a plethora of us would be out of a job. The fine line between work and personal life has been wearing away for some time. As work life and personal life start to blur employers are naturally going to endeavor to regulate the comportment of their employees since they now represent their respective compa-nies both in and out of the work place. Regulating people outside of the workplace feels like an assault on individual rights. I can understand some regulation of military or professional sports because their physical condition directly relates to their job performance… but that’s a slippery slope. Unless it is detrimental to the job or poorly reflects values of the vocation personal life is just
In order to get rid of the vicious cycle of poverty feeding into mental illness, there is a need to think of mental health as a development priority instead of just a concern of public health and human rights.
According to the Facts and Numbers page on the National Alliance of Mental Illness website, "One in four adults--approximately 61.5 million Americans-- experience mental illness in a given year. One in fo17-- about 13.6 million-- live with a serious mental illness such as schizophrenia, major depression or bipolar disorder." (Facts and Numbers). Throughout history people with mental illness have been perceived as lesser than those without mental illness, and thus these people have an innumerable amount of difficulties and challenges to overcome compared to their counterparts with the benefits of pristine mental health. In The Mad Among Us by Gerald N. Grob, he describes the change of the ways of caring for the mentally ill starting from the beginning of institutionalization in the early eighteenth century (Grob 17) to the idea that serious disorders cannot be cured, but alleviating the symptoms "should be able to remove the obstacles that stand in the way of natural self-healing processes." (Grob 311). The lies of people with mental illness are as diverse as the disorders they live with. Unimaginable obstacles are waiting around every corner for people with mental illness.
Moral ethics is the belief that all human beings are born to know right from wrong. We come into this world as good people, but the temptations and challenges in life influence our mind set to as it will. Every person on Earth chooses if they’re to follow through with their life of good or go down the path of bad. “A person’s moral ethics” (unknown.)
...ub principles of consideration, which is also known as one of the most important methodical processes of a formation of a contract. Overall, this may be seen as the essence of a legal contract, the exchange of consideration, which if excluded, will contain nothing more than an unenforceable promise.
Mental health refers to the state of individuals psychologically, emotionally and socially. Mental health affects a person’s emotions, feelings, thoughts, and sections when exposed to different situations. Furthermore, mental health is responsible for a person’s reaction to stress and other social conditions. Generally, mental health affects how a person relates to others and their ability to understand and interact with them. Therefore, problems that affect a person’s mental health affect the abilities to socialize, their feelings, moods, reaction to situations. The person experiencing mental health problem may portray different behaviors when confronted with different issues. Mental health issues have several