Introduction

The classic situation in which unconscionable bargains and the wider doctrine of oppressive and unconscionable terms developed was where an impecunious borrower took a loan to ease his plight. Originally it was an heir to a landed estate who mortgaged his expectant interest to secure that loan, but it is now the domestic borrower who mortgages his or her home to fund either a loan for its purchase or to secure other liabilities. It is in this latter context that this chapter will consider the current statutory protections that have overshadowed the original equitable jurisdiction and introduced new notions of unconscionability to English law.

The idea of the statutory protection in this context is not new. Laws against usury, which initially outlawed and later controlled interest rates, date from the Middle Ages and were only abolished in the mid-nineteenth century. Statutory protection continued to control moneylenders but, as credit has become part of everyday life, there has been an overhaul of the statutory landscape governing the supply and control of credit to domestic borrowers. This legislation has abandoned the broad discretionary jurisdiction that justified intervention on the grounds of unconscionability and in its place has developed a complex web of statutory provisions and regulatory responsibilities, which protect the impecunious borrower as a consumer. It is not intended in this chapter to examine each of these measures in detail but to look to the broad sweep of this new statutory landscape.