Reciprocity III: controlling unfairness and illegality

Abstract

This chapter examines substantive unfairness in contract content—from objectively unfair exchanges to brutal terms, illegality, and public policy violations. While English law claims reluctance to interfere with freely agreed content, indirect controls operate through interpretation, presumptions, and implied terms. Direct controls include unconscionable bargain doctrine requiring bargaining impairment, exploitation, and manifest improvidence, though Commonwealth courts apply it more broadly than England. Legislation provides powerful tools: UCTA blacklists terms excluding liability for death or injury in business-to-business contracts and subjects other exemptions to reasonableness; CRA invalidates unfair business-to-consumer terms causing significant imbalance contrary to good faith. DMCCA strengthens consumer protection by banning fake reviews, giving consumers new rights to exit subscription contracts more easily and empowering regulators to impose direct fines on businesses that breach consumer law. Illegality and public policy violations render contracts unenforceable, protecting legal system integrity. Technology creates new challenges through data commodification, algorithmic discrimination, platform power, and virtual assets.