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1. JS Mill
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‘Evaluate the extent to which the English law of contract addresses inequality of bargaining power’
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‘The law of contract must strike a balance between two competing aims’ . Many of the rules governing contract are to ensure fairness and there are a number of distinct, though sometimes overlapping, doctrines concerning this area of English law. The question of fairness may be made in relation to the way in which the contract is made (procedural unfairness) or in the terms resulting from the contract (substantive unfairness). In English law the judicial approach to contracts, which are unfair or discriminatory, has expanded significantly over time. It was restricted in the nineteenth century by the assumption through the freedom of economic decision, parties are enabled to choose the terms on which they enter contracts, based on what they consider advantageous to their interests. Limiting this freedom to relieve inequality was seen as a legislative task for Parliament. There are now principles in place within English law to address the problem of unfair contracts. Factors that can impact the validity and enforceability of a contract involve the improper conduct of one party, the vulnerability of the other, or a combination of these. Three areas that involve these factors are duress, undue influence, and unconscionable conduct. These types of conduct are related and are grounded on the general principle of ‘inequality in bargaining’ and if a contract is found to involve one of these the contract can be made’ void’ . In order for this to happen it has to be shown that the contract was unfair in the way it was made and/or there is contractual imbalance (concerning the actual substance of the contract and the fairness of its terms). The burden of justifying the righteousness of a bargain is on the party claiming benefit of it As the acceptance and agreement of an offer is one of the main elements needed to create a contract, parties must obviously enter into contracts freely for them to be binding. If a contract has been induced by the use of unlawful or illegitimate force or pressure by one party, or the threat to do so, the contract is voidable (at the option of the victim) based on duress. There must be violence, or the threat of violence or the threat to commit some illegal act in the traditional interpretation of duress. It must be directed to the other party or his family or a close relative, and it must be a factor in the victim's decision to enter into the contract, for example Barton v Armstrong [1975] where a threat made to kill the other party if he did not sign the contract. As many cases concern tortuous duress, there can also be an action for damages. Historically a claim that a contract was voidable for duress could only be successful if a threat to the person (physical duress) and had induced the contract.
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