Unconscionability in European Private Financial Transactions: Protecting the Vulnerable

doi:10.1017/CBO9780511760938

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.

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Contents

Frontmatter
pp i-iv
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Contents
pp v-vii
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List of contributors
pp viii-x
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Introduction: conceptualising unconscionability in Europe
pp 1-4
- By Mel Kenny, James Devenney, Lorna Fox O'Mahony
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PART I - Conceptualising unconscionability
pp 5-6
- By Aurelia Colombi Ciacchi
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1 - Freedom of contract as freedom from unconscionable contracts
pp 7-25
- By Aurelia Colombi Ciacchi
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2 - Protection of weaker parties in English law
pp 26-45
- By Stephen Waddams
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3 - Freedom of contract, unequal bargaining power and consumer law on unconscionability
pp 46-61
- By Immaculada Barral-Viñals
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4 - Loyalty as a tool to combat contractual unfairness: a French perspective
pp 62-78
- By Séverine Saintier
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5 - Unconscionability and the value of choice
pp 79-98
- By Emmanuel Voyiakis
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6 - From individual conduct to transactional risk: some relational thoughts about unconscionability and regulation
pp 99-128
- By John Wightman
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7 - An economic perspective on legal remedies for unconscionable contracts
pp 129-144
- By Qi Zhou
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PART II - Conceptualising unconscionability in financial transactions
pp 145-146
- By Warren Swain, Karen Fairweather
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8 - Usury and the judicial regulation of financial transactions in seventeenth- and eighteenth-century England
pp 147-165
- By Warren Swain, Karen Fairweather
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9 - Protection of the vulnerable in financial transactions – what the common law vitiating factors can do for you
pp 166-183
- By David Capper
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10 - Borrowers as consumers: new notions of unconscionability for domestic borrowers
pp 184-204
- By Sarah Nield
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11 - Conceptualising and understanding fairness: lessons from and for financial services
pp 205-226
- By Cartwright Peter
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12 - Open the box: an exploration of the Financial Services Authority's model of fairness in consumer financial transactions
pp 227-245
- By Toni Williams
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13 - Conceptualising unconscionability in the context of risky financial transactions: how to converge public and private law approaches?
pp 246-274
- By Olha O. Cherednychenko
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14 - Conceptualising unconscionability in the post-Soviet era: the Lithuanian case of legal transplants
pp 275-288
- By Andrius Smaliukas
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15 - Bank loan contracts in Polish law: the legal position of the borrower
pp 289-307
- By Stanislawa Kalus, Magdalena Habdas
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16 - Financial contracts and ‘junk title’ purchases: a matter of (in)correct information
pp 308-325
- By Cristina Amato
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17 - Kickback payments under MiFID: substantive or procedural standard of unconscionability?
pp 326-349
- By Axel Halfmeier, Peter Rott
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18 - Unfairness under the Consumer Protection from Unfair Trading Regulations 2008
pp 350-374
- By Chris Willett
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Conclusions
pp 375-376
- By Mel Kenny, James Devenney, Lorna Fox OMahony
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19 - Conceptualising unconscionability in Europe: in the kaleidoscope of private and public law
pp 377-399
- By Mel Kenny, James Devenney, Lorna Fox OMahony
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Index
pp 400-420
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Unconscionability in European Private Financial Transactions

Protecting the Vulnerable

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Contents

Frontmatter
pp i-iv

Contents
pp v-vii

List of contributors
pp viii-x

Introduction: conceptualising unconscionability in Europe
pp 1-4

PART I - Conceptualising unconscionability
pp 5-6

1 - Freedom of contract as freedom from unconscionable contracts
pp 7-25

2 - Protection of weaker parties in English law
pp 26-45

3 - Freedom of contract, unequal bargaining power and consumer law on unconscionability
pp 46-61

4 - Loyalty as a tool to combat contractual unfairness: a French perspective
pp 62-78

5 - Unconscionability and the value of choice
pp 79-98

6 - From individual conduct to transactional risk: some relational thoughts about unconscionability and regulation
pp 99-128

7 - An economic perspective on legal remedies for unconscionable contracts
pp 129-144

PART II - Conceptualising unconscionability in financial transactions
pp 145-146

8 - Usury and the judicial regulation of financial transactions in seventeenth- and eighteenth-century England
pp 147-165

9 - Protection of the vulnerable in financial transactions – what the common law vitiating factors can do for you
pp 166-183

10 - Borrowers as consumers: new notions of unconscionability for domestic borrowers
pp 184-204

11 - Conceptualising and understanding fairness: lessons from and for financial services
pp 205-226

12 - Open the box: an exploration of the Financial Services Authority's model of fairness in consumer financial transactions
pp 227-245

13 - Conceptualising unconscionability in the context of risky financial transactions: how to converge public and private law approaches?
pp 246-274

14 - Conceptualising unconscionability in the post-Soviet era: the Lithuanian case of legal transplants
pp 275-288

15 - Bank loan contracts in Polish law: the legal position of the borrower
pp 289-307

16 - Financial contracts and ‘junk title’ purchases: a matter of (in)correct information
pp 308-325

17 - Kickback payments under MiFID: substantive or procedural standard of unconscionability?
pp 326-349

18 - Unfairness under the Consumer Protection from Unfair Trading Regulations 2008
pp 350-374

Conclusions
pp 375-376

19 - Conceptualising unconscionability in Europe: in the kaleidoscope of private and public law
pp 377-399

Index
pp 400-420

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Unconscionability in European Private Financial Transactions

Protecting the Vulnerable

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