The question of fairness in contract law

Abstract

Abstract:The law of contracts has developed a variety of techniques for avoiding the enforcement of highly unfair, unreasonable, or burdensome terms. As yet, however, the common law has not directly adopted a straightforward rule to this effect. As a result, existing doctrines have been strained to achieve this objective. Further, there remain large gaps in the law in which such terms remain enforceable. The resulting state of the law contains many anomalies, uncertainties, and injustices. The author offers a sustained and convincing case for the explicit adoption of a rule permitting courts to refuse to enforce such terms. The argument draws support from an extensive review of historical and theoretical sources.