If we could redesign the law of contract starting with a blank canvas, would the end result be the same as our current legal framework? Many of the principles that shaped English contract law, including freedom and sanctity of contract, are rooted in an individualistic conception of autonomy and a perception of contracting parties as economic actors in pursuit of self-interest. Yet, ageing population trends and the likely consequential increase in the number of people with mental health conditions such as dementia,Footnote ¹ entering into grossly asymmetrical contracts to their detriment,Footnote ² have reinforced the need for an approach that ‘humanises’ private lawFootnote ³ and perceives contracting parties as both economic and social actors. It is, therefore, legitimate to re-examine key principles and doctrines of contract law, reflecting on the extent to which these are compatible with the values entrenched in the UN Convention on the Rights of Persons with Disabilities (UNCRPD),Footnote ⁴ in particular the protection of individual and relational autonomy, and human dignity. The Convention was ratified by the United Kingdom (UK) in 2009 and whilst it has not been incorporated into domestic law and, consequently has ‘no direct effect in English law’,Footnote ⁵ its ratification requires that domestic law conforms ‘wherever possible’ with the ‘norms and values’ enshrined in the Convention.Footnote ⁶ The end result of this re-evaluation is not to propose a new framework of principles and doctrines of English contract law. Instead, it considers how the current legal framework can be interpreted in a way that is compatible with the Convention values, which moves away from a focus on people’s medical conditions to consider the circumstances of the transactions, and which reinforces the view that even when operating in the private sphere, people never stop being holders of rights.Footnote ⁷

This book calls for a vision of contract law based not on a single, economic sphere but on two concentric spheres. The inner sphere encompasses an economic realm rooted in values such as freedom and sanctity of contract, reflecting a non-interventionist approach that can accommodate imbalanced transactions, if entered into by parties who exercise their individual autonomy unaffected by vitiating factors.Footnote ⁸ The outer sphere is shaped by public policy concerns and embodies social values such as the protection of relational autonomy and human dignity, recognising our interdependence and reaffirming our equal worth as people.Footnote ⁹ For example, grossly asymmetrical contracts (e.g. purchases at excessively high prices or sales at significant undervalue, to the detriment of a vulnerable party who acted without appropriate and accessible legal advice) would step out of the inner economic sphere into the outer social sphere of contractual relations. Decisions not to enforce such significantly imbalanced transactions could be perceived as circumstances where the state does not give its agreement to enforce such contractsFootnote ¹⁰ because vitiating factors have caused the transaction to step out of the inner economic sphere into the outer social sphere.

The lens through which we should examine such contracts, and the map that could assist us in this endeavour, is explored in more depth in Chapter 2, which articulates the model of concentric spheres in contract law. This chapter calls for an approach that considers not only economic but also social values, and which assesses vulnerability based on the context of the transactions, rather than the medical conditions of individuals. Once this map has been drawn up in Chapter 2, the structure of Chapters 3–5 rests on the idea of bridges between private law (with a focus on contract law) and human rights (with a focus on disability equality). Rather than exploring the construction of a single bridge, the book examines three such constructions.Footnote ¹¹ Chapter 3 centres on the first bridge, which can be envisaged between common law doctrines and principles, linking the inner economic sphere of contract law with its outer sphere. This chapter examines vitiating factors affecting the balance between contracting parties, including incapacity, non est factum, mistake, misrepresentation, duress, unconscionability, and undue influence. The discussion argues that we should focus not only on the horizontal axis of contractual relations between private parties but also on the vertical axis that governs the relation between individuals and the state. The contractual relations between the parties (A and B) could be envisaged as a lever on a balance scale, with the parties at each end of the scale, and the state in the middle, as a fulcrum. Factors such as the combination of A’s vulnerability and B’s unacceptable conduct could be perceived as a weight pressing A down into a danger zone of gross asymmetry in the parties’ bargaining position, stepping from the inner economic dimension into the outer social sphere of contracting.

After examining the role of private law doctrines and principles in connecting social and economic values in the contractual realm, the discussion moves to explore the second bridge in Chapter 4, which considers the part played by regulation (including the regulation of unfair contract terms) in bringing together these values. The discussion focuses on the regulation of unfair contract terms, unfair commercial practices, implied terms in contracts for the provision of goods, services, and digital content, and on information and cancellation rights in business-to-consumer (B2C) contracts. The analysis explores the extent to which these provisions protect people not only as economic actors but also as social actors, as well as the extent to which this framework safeguards values such as autonomy and human dignity. This chapter also examines the concept of consumer vulnerability in consumer–trader relations. It builds on Cartwright’s taxonomy of consumer vulnerability (which includes informational, supply, redress, pressure, and impact vulnerability)Footnote ¹² to add one further type: influence vulnerability. This refers to the limited opportunities available to consumers, including people with disabilities, to shape the regulatory framework, when compared with the influence exercised by industry players.

The third bridge is explored in Chapter 5 and focuses on the connection between constitutional values and private law. The analysis concentrates on the values of autonomy and human dignity and their interplay with the principle of freedom of contract in English contract law. The discussion also reflects on the link between the UNCRPD, the European Convention on Human Rights (ECHR),Footnote ¹³ the Human Rights Act (HRA) 1998,Footnote ¹⁴ and English contract law and suggests that rather than looking for a seamless bridge that links the UNCRPD directly with English contract law, we should look for steppingstones connecting the UNCRPD, the ECHR, the HRA, and domestic private law. This chapter also discusses the values of participation and inclusion, with a focus on the idea of influence vulnerability explored in Chapter 4, and reflects on the need to enhance the influence of persons with disabilities and Deaf and Disabled People’s Organisations (DDPOs) in shaping legislative developments in English law, including consumer contract law.

The idea of bridges between economic and social concerns is brought together in the concluding chapter (Chapter 6). This chapter reinforces the need to recognise the outer sphere of contracting in holding these connections together. The discussion emphasises the role of contract law in protecting economic and social values, individual and relational autonomy, and in enforcing transactions and safeguarding vulnerable parties.Footnote ¹⁵ A suggested path to succeed in these endeavours is to embrace the idea of complementarity in contract law, which enables us to accept the coexistence of ideas that may appear, initially, to be mutually exclusive.Footnote ¹⁶ Just as in science we have to accept the idea that an electron can behave both as a particle and as a wave,Footnote ¹⁷ we can transpose the concept of complementarity in contract law, to enable us to see economic and social values not as antagonistic but as coexisting parts of interconnected spheres.

This research is mostly desk-based. It relies on socio-legal inquiry, focusing on participation barriers encountered by people with disabilities in the contractual sphere, and examining how the legal framework relates to structural problems such as economic and emotional exploitation by, among others, predatory sellers, or family members or carers. Sources include General Comments of UN Committees, reports drafted by government departments, by statutory independent bodies, by registered charities, and by consumer organisations, responses to public consultations, empirical scholarship on the living experiences of persons with disabilities, as well as empirical research conducted with DDPO representatives. The analysis is based on legal inquiry focused on primary and secondary sources examining vitiating factors in contract law and issues concerning the regulation of B2C transactions, including unfair contract terms and unfair commercial practices. The critical analysis of these sources is informed, among other sources, by the literature on disability and economics, feminist critiques of contract law, socio-legal critiques of the vulnerability concept, contract theory, and contract legal history.

This book aims to contribute towards bridging the areas of disability equality law and contract law. It builds on contract legal research that explores issues of public policy and social values,Footnote ¹⁸ to focus specifically on disability equality in the contractual sphere, and on disability legal research concerned with equality for consumers with disabilities,Footnote ¹⁹ by centring the discussion on contract theory. It also seeks to build on studies exploring the link between contract law and human rights,Footnote ²⁰ by focusing on questions concerning the compatibility of key principles, doctrines, and statutory provisions in English contract law with UNCRPD values, including autonomy and human dignity. Given the centrality of contractual relations to people’s lives,Footnote ²¹ such questions are important for both disability theory and contract theory.

Contract law plays a crucial role in connecting people in mutual relations and contributing to the wider norms that govern how people should treat each other.Footnote ²² In the light of ageing population trends and the likely increase in the number of people whose capacity to understand the implications of a transaction has been affected by mental health conditions such as dementia,Footnote ²³ it is important that the interests of persons with disabilities in the contractual realm are not overlooked. The issue of grossly asymmetrical contracts affecting persons with disabilities is becoming increasingly important, especially if we consider that by 2051, the estimated figure for people living with conditions such as dementia in the UK will approach 2 million.Footnote ²⁴ In the contractual sphere, people with this condition are likely to be affected by factors such as difficulty in processing information, communicating and planning, and memory loss, as well as by as insufficient understanding of their condition by other contracting parties (including service providers such as the financial services industry).Footnote ²⁵ Further difficulties in the contractual realm are also likely to be encountered by people with cognitive, mobility or sensory disabilities, who may be placed in a vulnerable position of information asymmetry due to environmental barriers such as the absence of information in accessible formats. Additional challenges have been posed by the rise in social isolation seen during pandemics such as COVID-19,Footnote ²⁶ which increased people’s vulnerability to pressure to enter into detrimental transactions. While, in some cases, people may seek to rely on pathways such as complaints to an OmbudsmanFootnote ²⁷ to challenge such disadvantageous transactions, contract law should also provide an effective path to be pursued. Consequently, it is important to have clarity as to when grossly imbalanced contracts will be unenforceable. Perhaps even more significant is to have a clear understanding as to why such contracts will or will not be enforced, relying on a framework of principles that seeks to protect people not only as economic actors but also as social actors endowed with values such as equality, autonomy, and human dignity. When examining these contracts, it is also important to move away from a focus on people’s medical conditions and to consider instead the circumstances of the transactions (including factors such as accessible information) and to perceive people as holders of rights, irrespective of whether they are operating in the public or private spheres.Footnote ²⁸

The book also calls for a regulatory framework, including in relation to unfair commercial practices in B2C transactions, which considers neurodiversity. Neurodiversity recognises ‘differences in brain function and behavioural traits’ as a ‘normal variation in the human population’ and includes neurodivergence (e.g. autism, ADHD, dyslexia, dyspraxia, dyscalculia, dysgraphia, Tourette’s syndrome), and neurotypicality.Footnote ²⁹ As part of the analysis in Chapter 4 of the regulatory framework on unfair commercial practices, the discussion reflects on the challenges posed by harmful ‘online choice architecture’ (OCA)Footnote ³⁰ on consumers in the digital marketplace, including on neurodivergent consumers, calling for an approach that assesses vulnerability based on the context of the transaction, which recognises the variety of ways in which people process information, and which is focused on protecting values such as individual autonomy and human dignity. Harmful OCA (or ‘dark patterns’)Footnote ³¹ refers to design features employed by traders to present ‘information and choices’ to consumers,Footnote ³² in a way that ‘systematically’ manipulates them into actions that they would not have taken otherwise.Footnote ³³ Dark patters include forced urgency (e.g. countdown timers or scarcity claims about low stocks), trick questions (e.g. questions deliberately designed to confuse consumers to agree to a subscription), false hierarchy (e.g. providing consumers with two options, but using an enhanced position, colour or size for the option more favourable to the trader), and forced continuity (e.g. difficult to cancel subscriptions following a free trial).Footnote ³⁴ These dark patterns, which work ‘on a subconscious level’, can influence consumers without their knowledge, can benefit traders (e.g. by increased profits) and result in negative experiences for the consumers,Footnote ³⁵ causing, inter alia, financial and emotional harm.Footnote ³⁶ These deceptive patterns can be particularly problematic for neurodivergent consumers, who may have a lower threshold than neurotypical consumers for when a feature designed by traders to influence consumers becomes a manipulative pattern,Footnote ³⁷ and who may experience feelings of panic and anxiety when faced with dark patterns such as ‘forced urgency’.Footnote ³⁸ Consumer contract law must reflect a contextual understanding of vulnerability, acknowledging human diversity (e.g. the various ways in which people process information), when assessing the scope of unfair commercial practices. In addition, this regulatory framework must be shaped in consultation with key stakeholders, including organisations of neurodivergent people.

Questions regarding the validity of grossly imbalanced transactions involving vulnerable contracting parties should be addressed with reference not only to procedural factors and economic concerns but also to substantive factors and social concerns,Footnote ³⁹ including the protection of fundamental values such as human dignity. In this context, a focus on safeguarding human dignity could be understood as the need to ensure that no one is disadvantaged because of their subjective characteristics,Footnote ⁴⁰ and that everyone is treated with respect.Footnote ⁴¹ Moreover, vulnerability should not be associated with belonging to a particular group, or having a particular medical condition, but should be rooted in the context of the transaction examined (e.g. questioning whether service providers made available appropriate and accessible information to enable the individual to make an informed decision).Footnote ⁴²

The UNCRPD rests on a clear framework of values, based on a rights-based approach for understanding vulnerability in all spheresFootnote ⁴³ and, by implication, the contractual realm. As such, the Convention can act as a benchmark against which we can assess the effectiveness of English contract law (including consumer contract law) in responding to both economic and social concerns in the contractual sphere. International human rights instruments such as the UNCRPD are clear as to why everyone has the right to exercise their legal capacity on an equal basis with others and to enjoy equal protection of values such as autonomy and human dignity. Nevertheless, there is less clarity as to how these rights are to be exercised in the contractual sphere, on the connection between concepts such as legal capacity and contractual capacity, and on how safeguards from vitiating factors or protection from unfair commercial practices are to operate in practice. Conversely, domestic frameworks such as English contract law provide a certain degree of clarity on how procedural factors, such as freedom from duress, undue influence, or unconscionability, are to operate in practice, but there is less clarity on why intervention is necessary. It is as if the inner sphere of contract law has been isolated from the outer sphere of social values, with incomplete bridges to connect the two. Whilst this book focuses on contract law in a domestic jurisdiction, the lessons to be learnt are not limited to English contract law, due to the universality of the need to protect social values in the private sphere. English contract law and the UNCRPD have much to learn from each other, and this book seeks to explore how to build bridges that would facilitate two-way paths between them. Through these paths, the Convention harnesses the potential of contract law to pursue social objectives (which would be in addition to pursuing these objectives through other areas of law, including public law), and English contract law assesses the extent to which its principles and doctrines are compatible with the values promoted by the UNCRPD, including equal respect for autonomy and human dignity. This vision of concentric economic and social spheres in contract law is articulated more clearly in Chapter 2, which sketches the map to direct the search for connections between these sets of values in the contractual realm.