How to analyse unconscionable conduct questions.docx

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How to analyse unconscionable conduct questions : Unconscionable Conduct – can be answered in 3 ways: 1. Common Law 2. Section 20 of ACL 3. Section 21 of ACL Unconscionable Conduct : this is an area of law that allows a weaker person to cancel the contract or gift if the contract or gift was obtained through unfair conduct by the stronger person. The traditional theory of contract law was “freedom of contract”. This means the parties should be allowed to enter any contract of their choice, including terms that may seem harsh or unfair. However, the problem is parties often have very “ unequal bargaining power ”. In other words, a contract may consist of a “Stronger party” and a “weaker” party. This power imbalance can sometimes cause the stronger party to unfairly exploit the weaker party. 传统合同的理论是“合同自由”。 该概念的意思是如果当事人互相同意合同的条款, 他 们同意并授权任何类型的合同或条款 , 包括苛刻和不公平的条款。但是,有时候合同的 当事没有相同等级谈判力。 就是说,在一些情况下, 合同包括一方相对较弱,一方相 对强势。 这种失衡情况有时候可以让强势的一方不公平的利用或操纵较弱的一方。 Unconscionable conduct is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power , that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The law prohibits a stronger party obtaining a benefit from a weaker party who is unable to properly understand the unfair contract. 不道德行为是一个合同的法律,描述非常不公平的条款,或与强势的一方太有利的合 同,所以该条款违反了社会道德的观点。 一般来说,不道德的合同被视为不可执行, 因为一个合理或知情的人不愿接受这种合同。法律禁止强势的一方从无法正确理解不 公平合同的较弱的一方获的利益 Over time, society has progressed and cares more about the protection of weaker parties.
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