Reshaping contractual unfairness in England 1670-1900

Swain, Warren (2014) Reshaping contractual unfairness in England 1670-1900. Journal of Legal History, 35 2: 120-142. doi:10.1080/01440365.2014.925177

Author Swain, Warren
Title Reshaping contractual unfairness in England 1670-1900
Journal name Journal of Legal History   Check publisher's open access policy
ISSN 0144-0365
Publication date 2014-07-04
Year available 2014
Sub-type Article (original research)
DOI 10.1080/01440365.2014.925177
Open Access Status Not yet assessed
Volume 35
Issue 2
Start page 120
End page 142
Total pages 23
Place of publication Abingdon, Oxon, United Kingdom
Publisher Routledge
Language eng
Subject 1202 History
3308 Law
Abstract English contract law has offered protection for the vulnerable and exploited for centuries. The most wide-ranging doctrine of contractual unfairness could be found within the Court of Chancery. In Lord Nottingham's time relief extended to a range of situations, loosely held together, with no real unifying structure. Yet even here some common themes emerged. Transactions which fell outside the usury laws were looked at with particular concern. In the eighteenth century Lord Hardwicke attempted to rationalize relief under the rubric of fraud. This was largely a difference in presentation. Under the influence of the rise of legal literature and ideas derived from Will Theory, the nineteenth century might have seen the emergence of a truly coherent doctrine of contractual unfairness. That this did not happen can be attributed to a combination of factors. These include the durability of the notion of fraud, the complexity of contractual unfairness which could not be reduced to a doctrine based on will and the way in which contractual unfairness was bound up with public policy. The substance of relief may have changed less than has often been supposed. Certainly there was no shift from a world in which the courts offered protection to one in which freedom of contract always prevailed. The failure of nineteenth century judges and writers to be more radical has left a legacy of incoherence that is still felt today.
Keyword Contract
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ
Additional Notes Published online 4 July 2014

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2015 Collection
TC Beirne School of Law Publications
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Created: Mon, 07 Jul 2014, 23:06:42 EST by Warren Swain on behalf of T.C. Beirne School of Law