Unconscionability in European Private Financial Transactions: Protecting the Vulnerable

by Edited by Mel Kenny , James Devenney , Lorna Fox O'Mahony

• ISBN13: 9780521190534
• ISBN10: 0521190533
• Edition: 1st
• Format: Hardcover
• Copyright: 2010-07-26
• Publisher: Cambridge University Press

Summary

Given the unprecedented recent turmoil on financial markets we now face radically challenged, 'post-Lehmann' assumptions on protecting the vulnerable in financial transactions. This collection of essays explores conceptions of, and responses to, unconscionability and similar notions across Europe with specific reference to financial transactions. It presents a detailed analysis of concepts of unconscionability in Europe against a backdrop of Commission initiatives aimed, variously, at securing a single market in financial services, producing greater coherence in EC consumer protection law and consolidating European private law. This analysis illustrates, for example, that concepts of unconscionability depend on context and can be shaped by a variety of factors. It also illustrates that jurisdictions may choose to respond to questions of unconscionability through a variety of legal instruments located in different branches of the law rather than through a single doctrine. Thus this collection illuminates many of the obstacles facing harmonisation in this area.

Author Biography

Mel Kenny is Reader in Commercial Law at the University of Leicester. James Devenney is Deputy Head of Durham Law School and Director of the Durham University Institute of Commercial and Corporate Law. Lorna Fox O'Mahony is Professor of Law at Durham University.

Table of Contents

List of contributors	p. viii
Introduction: conceptualising unconscionability in Europe	p. 1
Conceptualising unconscionability	p. 5
Freedom of contract as freedom from unconscionable contracts	p. 7
Protection of weaker parties in English law	p. 26
Freedom of contract, unequal bargaining power and consumer law on unconscionability	p. 46
Loyalty as a tool to combat contractual unfairness: a French perspective	p. 62
Unconscionability and the value of choice	p. 79
From individual conduct to transactional risk: some relational thoughts about unconscionability and regulation	p. 99
An economic perspective on legal remedies for unconscionable contracts	p. 129
Conceptualising unconscionability in financial transactions	p. 145
Usury and the judicial regulation of financial transactions in seventeenth- and eighteenth-century England	p. 147
Protection of the vulnerable in financial transactions - what the common law vitiating factors can do for you	p. 166
Borrowers as consumers: new notions of unconscionability for domestic borrowers	p. 184
Conceptualising and understanding fairness: lessons from and for financial services	p. 205
Open the box: an exploration of the Financial Services Authority's model of fairness in consumer financial transactions	p. 227
Conceptualising unconscionability in the context of risky financial transactions: how to converge public and private law approaches?	p. 246
Conceptualising unconscionability in the post-Soviet era: the Lithuanian case of legal transplants	p. 275
Bank loan contracts in Polish law: the legal position of the borrower	p. 289
Financial contracts and 'junk title' purchases: a matter of (in)correct information	p. 308
Kickback payments under MiFID: substantive or procedural standard of unconscionability?	p. 326
Unfairness under the Consumer Protection from Unfair Trading Regulations 2008	p. 350
Conclusions	p. 375
Conceptualising unconscionability in Europe: in the kaleidoscope of private and public law	p. 377
Index	p. 400
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