Alias, Siti Aliza and Abdul Ghadas, Zuhairah Ariff
(2012)
Inequality of bargaining power and the doctrine of unconscionability: Towards substantive fairness in commercial contracts.
Australian Journal of Basic and Applied Sciences, 6 (11).
pp. 331-341.
ISSN 1991-8178
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Abstract
The issues on unconscionability and inequality of bargaining power are common legal
dictums, which are constantly and continuously discussed in consumer contracts. However, the
predicaments caused by unconscionability and inequality of bargaining power in commercial
contracts are often left side ways despite the alarm, which had been set on by the contractual parties in
commercial contracts. Terms on earnest payment, performance bond, pre-determined damages,
standard exemption and limitation terms in commercial contracts are examples of practices which arise
from the unconscionability and inequality of bargaining power of the contractual parties. This paper
looks into the raison de-etre and legal discussion on the principles of unconscionability and inequality
of bargaining power under the law of contract and to highlight its application and effect in
commercial contracts. References of the discussion are mainly made to the common law principles
with occasional reference to the Australian law and Malaysian law. Research methodologies applied in
this research are doctrinal and statutory analysis.
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