Is English Law hampered by the absence of the phrase 'unconscionable conduct'?

The phrase is used mainly in Antipodean and Pacific former British colonies but 'unconscionability' is used similarly in the U.S. and Canada. Wikipedia ( holds that 'inequality of bargaining power' is 'essentially the same idea,' but Australian guidance specifies 'against conscience as judged against the norms of society' ( which seems importantly different and stronger. My worry is that the English equivalent seems to lack the moral imperative of the phrase, and that all jurisdictions might ultimately see 'inequality of bargaining power' as normal, anyway, especially in the current political climate, and especially vis-a-vis tenants. The difference of emphasis between the mother country and her former colonies is perhaps, similar in the use of the phrase 'vexatious litigant' (see but the practical difference is perhaps similarly marginal(?).

2 Answers

  • 6 months ago

    There are two ways of looking at this. In the US system (because of all the lawsuits), the law tends to be very objective: cross all the i's and dot all the t's and you demonstrate compliance without regard to intent, for the most part. The letter of the law is seen as primary.

    Many other places use more subjective concepts and rely on the intent of the law more than the letter of the law. This can be problematic in court, because subjectivity enters into the discussion. It is hard to prove intent, a person's subjective rationale.

    A term such as "unconscionable" is very subjective. Who decides what is "unconscionable"? It goes, pretty much without saying, that the person who performs such an act does not find it so, or most would not do it in the first place. So, who decides, and what is the line between conscionable and unconscionable? How can we say where and when that very vague line is crossed?

    Does a system using one, or the other, concept suffer? Well, sure, both sides can see situations where the system fails. I don't see a solution though. You either allow arbitrary judgement or you impose strict criteria that must be matched, and in either case, there will be people who get around the purpose of the law. Both are imperfect.

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  • Anonymous
    6 months ago

    Yes, I'm sure it is.

    "Unconscionability in English law is a field of contract law and the law of trusts, which precludes the enforcement of consent-based obligations unfairly exploiting the unequal power of the consenting parties."

    I've always thought that was wishful thinking in the context of trusts; just imagine the field day they could have with cases of racial discrimination.

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