Unconscionable Conduct for Conscience and Unconscionable

Question: Discuss about theUnconscionable Conduct for Conscience and Unconscionable. Answer: Introduction: Unconscionability is the defense which is used against the implementation of the contract and some part of the agreement. If the agreement is not fair and unjust to one of the parties in such a way that it recommended the misconduct at the time of its establishment, the court might consider it unconscionable and also refuses to implement it. There are many chances for the contract to be found unconscionable if both the parties to the contract use the unfair bargaining and also the unfair substantive terms (BAKER, 2009). The petit mal epilepsy of the choice of the disfavor party is required to prove the unfair bargaining. Unconscionability is regulated by the situations of the parties at the time of the formation of the contract which includes the bargaining power and the mentality of the parties. This principle is applied where it could be the provocation to the wholeness of the judicial systems for enforcing such kind of contracts. The unconscionable could be found in the act of the fraud where the deception of the circumstances and facts bereaves someone of the value able possession. When the unconscionable advantage could be taken by someone against the other party, then the criminal action of fraud or the civil action of deceit could be taken. But there are no standardized criteria are there for measuring whether the action is unconscionable or not? It is the court of law which applies their conscience or common sense to decide the unconscionable conduct as per the facts and circumstances of the case (Beale, 1978). The Concept of Unconscionability: Usually harsh and the shocking to the conscience, which is not fair prescribed by the court of law if known as the unconscionability. Whenever the court requires Unconscionable to characterized the nature, then it means that the nature should not satisfy to the precept of the conscience. If the contract is not fair or unjust to one of the parties in such a way that it suggests the misconduct at the time of its establishment, the Justice might find it unconscionable and also refuses to implement it. There are many chances for the contract to be found unconscionable if both the parties to the contract use the unfair bargaining and also the unfair substantive terms (CLARKE, 2005). The petit mal epilepsy of the choice of the disfavor party is required to prove the unfair bargaining. In the contractual law, the unconscionable contract is one which is not just and acutely favor the person in the one side who has the more trading power. The conscionable agreement is one that made by the par ties who are not competent to form the contract. The court of law finds that the unconscionable contracts are the results of the exploitations of the person who are poor, less educated and not able to find the best price which is available in the competitive market (Korah, 1967). The principle of the unconscionable conduct progressed over hundreds of months in the courts of equity. The system whereby the equality might interpose back into the affairs which will offended against the conscience for permitting to continue, irrespective to the legality of the circumstances of the general law. The unconscionable conduct considered as been characterized by the some of the commentators as the cramped principle of unconscionability, which might encompass the principles of duress, exploitation of the vulnerability, equitable estoppels, undue influence and the fair dealing. Many of these principles may allow the equity to intervene where the conduct might be against the conscience (Micklitz, 2010). As happened in the case of Commonwealth v Verwayen, where Justice Deane has held that the principle of promise by conduct could be found upon the good conscience. The principle that is right, or it is expedient to protect the persons from the results of mistakes. It is for t hat as it is right and expedient to protect them from the victimization from the other people. Unequal Bargain: The legal principle of the doctrine of unequal bargain occupies the very different place in the contract law. As the explicator receipted the legal concept of the unequal bargain for a small moment till the outset of principle, the courts of America had prohibited to the accurate analysis of the bargaining power. The legal principle which seems primarily as the elements of the criterion for the unconscionability and the court cite the reason for not allowing to implement the private contracts which are not good for the public (Miller, 2007). The courts could seldom overturn the agreements by the principles which are employed in the unequal bargain as the essential ingredient and the unequal bargain only are not an acceptable justification for the judicial intervention of the contract disputes. In Lloyds Bank Ltd. vs. Bundy, Lord Dennings had recommended that the power of disparities had established the general equitable and the legal defences to the agreement, the principle of inequa lity of the bargain power gives easement to one who without any sovereign advice entered into the agreements on the conditions which are not fair and transfers the property for the consideration which is totally inadequate. The Legislation which Supports the Unconscionability: The unconscionable conduct in the trade or commerce is also restricted by the statute. The unconscionable conduct is regulated by the provisions of the Part IV-A of the Trade Practices Act. The part IV-A of the Trade Practices Act contains the substantive provisions restricting the unconscionable conduct which are as follows: Section 51 AA restricts the unconscionable conduct as the meaning of the unwritten law for the states and the territories (Milne, 1997). Section 51AB restricts engaging in the conduct which is in connection with the supply of the goods and also for the services to the persons in all the situations which is unconscionable. Section 51 AC restricts the nature that in all the situations, the unconscionable in relation with the supply or the handling of the goods or the services which are taken from the corporation. Effects on Banks and Larger Institutions: Unconscionable conduct as the doctrine was totally designed to keep equality and the fair play (Orlando, 2011). Unconscionable behavior is defined as it appeals to criminate and also satisfies the courts for giving the easement to those who had suffered by this. In Australia, this principle was taken into the action by the Honble High Court in the Bromley vs. Ryan case, and the validity of this was extended by the Commercial Bank of Australia Ltd. vs Amadio case. In this case the major issue involved is that whether the defendant was bound by the agreement of the undertaking by taking into considerations the situations in which they have signed the agreement. As it was clear from the facts that the defendant has very little knowledge of the English language and moreover he did not take the professional advise regarding the agreement and moreover the bank manager who have total knowledge also did not advise the defendant to take the professional advice regarding the agreement. So at t he time of the mortgage, the bank has some idea regarding the financial position of the defendant and was also aware that the defendant was also unaware of the facts of the agreement. So, in the present case, Justice Manson had held that the bank manager had knowledge about the special disability of the defendant and he did not come forward to ensure that they comprehended the nature of the transaction. So, as a result, the bank is taking the advantage of the opportunity which presented the unconsciousness. After the decision of the court, the new concept has added into the general and the contractual law and also passed by the Australian legislation (Paterson and Brody, 2014). The unconscionable conduct could be differentiated in the two different ways. The first is the procedural unconscionability which puts to a disadvantage to be suffered by the weaker party in the negotiations and the second is the Substantive unconscionability which means to the unfairness of the terms. As due to the development of the concept of the unconscionability, the banks, and the larger institutions has got very much effected as there are restrictions on the concept of the unconscionability i.e. unfair trade practices. Prior to the development of this concept, as discussed in the above-said case the bankers used to commit fraud on the various aspects of the agreements, but after the development of the principle, the banks and the larger institutions got very much effected as now they could not commit fraud with the innocent and the poor persons. Unfair Agreement: The Australian Consumer law would protect the small business from the unfair terms in the standard form of contracts. The consumer law applies to the standard form of contracts which is for the supply of the goods or the services and the sale or the grant of the interest in the land. After that at least one of the party should be a small business i.e. having employees less than 20. The terms of the contract might be unfair if it includes the terms which enable that one party may avoid or limit their obligations but the other party could not. If the terms of the contract are that the one party but not the second party could terminate the contract and the one party could penalize the other party for breaching the contract but not the other party (Qouteshat, 2017). The major effects of having the unfair contracts terms are that if the court or the tribunal had found that the term is unfair then the term would be void which means that it will not bind the parties and furthermore the rest of the contract would continue to bind the parties to the limit as they are capable of operating without the unfair contract terms. The Role of Financial and Consumer Rights Council- Victoria regarding the unfair agreements: The unfair trade practices affect many customers in Australia, the remedies of which are often by the consumers law in Australia. The Financial and Consumer Rights Council had strongly suggested the COAG agreement to support and implement the new consumer law, as the new law is applicable to the financial services. The Australian Consumer law should be introduced with the possibility of introducing the multiple benefits such as enhancing the consumer protections, reducing the complexity of the businesses and also to encourage the growth of the national economy. The Financial and Consumer Rights Council should focus on the submissions specifically made to the Australian Consumer law potential for enhancing the consumer protection (Redpath and Nagia-Luddy, 2015). The Financial and Consumer Rights Council would provide the suggestions on the unfair contract terms and also door to door trading and the telemarketing provisions which must be adopted in the best interest of the low income a nd the susceptible consumers (Whittaker, 2011). References BAKER, R. (2009). Conscience and the unconscionable.Bioethics, 23(5), p.ii-iv. Beale, H. (1978). Unfair Contract Terms Act 1977.British Journal of Law and Society, 5(1), p.114. CLARKE, J. (2005). Criminal penalties for contraventions of part iv of the trade practices act.Deakin Law Review, 10(1), p.141. Korah, V. (1967). Information Agreements and the Reform of the Restrictive Trade Practices Act 1956.Current Legal Problems, 20(1), pp.43-63. Micklitz, H. (2010). Reforming European Unfair Terms Legislation in Consumer Contracts.European Review of Contract Law, 6(4). Miller, L. (2007). After the unfair Contract Terms Directive; Recent European Directives and English Law.European Review of Contract Law, 3(1). Milne, P. (1997). Proprietary Estoppel and the Element of Unconscionable Conduct.The Cambridge Law Journal, 56(01), p.34. Orlando, S. (2011). The Use of Unfair Contractual Terms as an Unfair Commercial Practice.European Review of Contract Law, 7(1). Paterson, J. and Brody, G. (2014). Safety Net Consumer Protection: Using Prohibitions on Unfair and Unconscionable Conduct to Respond to Predatory Business Models.Journal of Consumer Policy, 38(3), pp.331-355. Qouteshat, O. (2017). The Enforceability of the Unfair Arbitration Agreement in Consumer Disputes before Dubai Courts.Arab Law Quarterly, 31(1), pp.1-29. Redpath, J. and Nagia-Luddy, F. (2015). 'Unconscionable and irrational': SAPS human resource allocation.South African Crime Quarterly, (53). Whittaker, S. (2011). Unfair Contract Terms, Unfair Prices and Bank Charges.The Modern Law Review, 74(1), pp.106-122. An Analysis of Large-Scale Retailers Fair Trade Practices Act and Antitrust Principals. null(49), pp.707-740. Milne, P. (1997). Proprietary Estoppel and the Element of Unconscionable Conduct.The Cambridge Law Journal, 56(01), p.34. Orlando, S. (2011). The Use of Unfair Contractual Terms as an Unfair Commercial Practice.European Review of Contract Law, 7(1). Paterson, J. and Brody, G. (2014). Safety Net Consumer Protection: Using Prohibitions on Unfair and Unconscionable Conduct to Respond to Predatory Business Models.Journal of Consumer Policy, 38(3), pp.331-355.