Penalty Clauses Through the Lens of Unconscionability Doctrine: Birch v. Union of Taxation Employees, Local 70030

Kevin E. Davis
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引用次数: 2

Abstract

The author reviews the recent case of Birch v. Union of Taxation Employees, Local 70030, in which the Ontario Court of Appeal evaluated—in terms of the doctrine of unconscionability—the enforceability of a clause fining union members who cross picket lines during legal strikes. He applauds the decision as an important step toward jettisoning the traditional common law penalty doctrine, according to which stipulated remedy clauses designed to have an in terrorem effect upon a contracting party are per se unenforceable. The author criticizes the decision, however, for its failure to examine features of the case that would have been ignored under the penalty doctrine but that should have been prominent under the unconscionability doctrine. These features include: other provisions of the contract, the relative difficulty of arriving at “a genuine pre-estimate of the loss” as opposed to a “reasonable penalty”, and the process by which the contract was formed. The author concludes that, in failing to examine these features, the court missed an opportunity to clarify the changing law on the enforceability of stipulated remedy clauses.
从不合理原则的角度看罚款条款:伯奇诉税务雇员工会,当地70030
作者回顾了最近的伯奇诉税务雇员工会(Local 70030)一案,在该案中,安大略省上诉法院根据不合理原则评估了对在合法罢工期间越过纠察线的工会成员处以罚款的条款的可执行性。他称赞这一决定是朝着抛弃传统的普通法刑罚原则迈出的重要一步,根据该原则,旨在对缔约方产生恐怖影响的规定的补救条款本身是不可执行的。然而,作者批评该决定未能审查在惩罚理论下可能被忽视的案件特征,而在不合理原则下则应该突出这些特征。这些特征包括:合同的其他条款,相对于“合理的惩罚”,达成“真正的损失预估”的相对困难,以及合同形成的过程。作者的结论是,由于未能审查这些特点,法院错过了澄清关于规定的救济条款的可执行性的不断变化的法律的机会。
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