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Unconscionability in European Private Financial Transactions

Unconscionability in European Private Financial Transactions Protecting the Vulnerable

Author: Mel Kenny; James Devenney; Lorna Fox O'Mahony
Publisher: Cambridge University Press
ISBN: 9780521190534
Published In: June 2010
Format: Hardback
Jurisdiction: Europe ? Disclaimer:
Countri(es) stated herein are used as reference only

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Given the unprecedented recent turmoil on financial markets we now face radically challenged, ‘post-Lehmann' assumptions on protecting the vulnerable in financial transactions.

This collection of essays explores conceptions of, and responses to, unconscionability and similar notions across Europe with specific reference to financial transactions. It presents a detailed analysis of concepts of unconscionability in Europe against a backdrop of Commission initiatives aimed, variously, at securing a single market in financial services, producing greater coherence in EC consumer protection law and consolidating European private law.

This analysis illustrates, for example, that concepts of unconscionability depend on context and can be shaped by a variety of factors. It also illustrates that jurisdictions may choose to respond to questions of unconscionability through a variety of legal instruments located in different branches of the law rather than through a single doctrine. Thus this collection illuminates many of the obstacles facing harmonisation in this area.

Contents:: Introduction: conceptualising unconscionability in Europe Mel Kenny, James Devenney and Lorna Fox O'Mahony; 1. Freedom of contract as freedom from unconscionable contracts Aurelia Colombi Ciacchi; 2. Protection of weaker parties in English law Stephen Waddams; 3. Freedom of contract, unequal bargaining power and consumer law on unconscionability Immaculada Barral Viñals; 4. Loyalty as a tool to combat contractual unfairness: a French perspective Séverine Saintier; 5. Unconscionability and the value of choice Emmanuel Voyiakis; 6. From individual conduct to transactional risk: some relational thoughts about unconscionability and regulation John Wightman; 7. An economic perspective on legal remedies for unconscionable contracts Qi Zhou; 8. Usury and the judicial regulation of financial transactions in seventeenth- and eighteenth-century England Warren Swain and Karen Fairweather; 9. Protection of the vulnerable in financial transactions – what the common law vitiating factors can do for you David Capper; 10. Borrowers as consumers: new notions of unconscionability for domestic borrowers Sarah Nield; 11. Conceptualising and understanding fairness: lessons from and for financial services Peter Cartwright; 12. Open the box: an exploration of the Financial Services Authority's model of fairness in consumer financial transactions Toni Williams; 13. Conceptualising unconscionability in the context of risky financial transactions: how to converge public and private law approaches? Olha O. Cherednychenko; 14. Conceptualising unconscionability in the post-Soviet era: the Lithuanian case of legal transplants Andrius Smaliukas; 15. Bank loan contracts in Polish law – the legal position of the borrower Stanislawa Kalus and Magdalena Habdas; 16. Financial contracts and 'junk titles' purchases: a matter of (in)correct information Cristina Amato; 17. Kickback payments under MiFiD: substantive or procedural standard of unconscionability? Peter Rott and Axel Halfmeier; 18. Unfairness under the Consumer Protection from Unfair Trading Regulations 2008 Chris Willett; 19. Conceptualising unconscionability in Europe: in the kaleidoscope of private and public law Mel Kenny, James Devenney and Lorna Fox O'Mahony.