单词 | Unconscionable contract |
释义 | 不合情理的合約 A contract which is unfair or unreasonable by reason of the unfair manner in which it was brought into existence (‘procedural unfairness’) as where it was induced by undue influence (Pao On v Lau Yiu Long & Ors [1973-1976] HKC 377), or where it came into being through an unconscientious use of the power arising out of the circumstances and conditions of the contracting parties (Hart v O’Connor [1985] AC 1000, 2 All ER 880 (PC)). In such cases equity may give a remedy; by reason of the fact that the terms of the contract are more unfavourable to one party than to the other (‘contractual imbalance’): Lo Wo & Ors v Cheung Chan Ka Joseph & Anor [2000] HKLRD 370, [2001] 3 HKC 70 (CA). Contractual imbalance or inadequacy of consideration is not, however, in itself a ground for relief in equity (White and Carter (Councils) Ltd v McGregor [1962] AC 413, [1961] 3 All ER 1178 (HL)), but it may be an element in establishing such fraud as will avoid the transaction or the transaction may be so unconscionable as to afford in itself evidence of fraud ((Hart v O’Connor, supra). If the court finds the contract or any part of the contract (for the sale of goods or supply of services in which one of the parties deals as consumer) to have been unconscionable, the court has jurisdiction to refuse to enforce the contract, enforce the remainder of the contract without the unconscionable part, or limit the application of, or revise or alter, any unconscionable part so as to avoid any unconscionable result: Unconscionable Contracts Ordinance (Cap 458) s 5(1). In determining whether a contract or part of a contract was unconscionable in the circumstances relating to the contract at the time it was made, the court may have regard to (a) the relative strengths of the bargaining positions of the consumer and the other party, (b) whether, as a result of conduct engaged in by the other party, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the other party, (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services, (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the other party or a person acting on behalf of the other party in relation to the supply or possible supply of the goods or services, and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the other party: s 6(1). See also Contract; Unconscionable. |
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