Author: Saprai, Prince

Source: King's Law Journal, Volume 21, Number 1, February 2010 , pp. 71-95(25)

Publisher: Hart Publishing

Abstract:

The article is a critique of a particular theory of substantive fairness in contract, or judicial interference with contract for content-based reasons, called equality of exchange. I argue that equality of exchange has weak philosophical foundations. That the Hegelian defence of equality of exchange rests on a non sequitur, and that autonomy-based defences fail to show how it promotes autonomy.

I also challenge the validity of equality of exchange as a legal principle, by demonstrating that it cannot explain various instances of substantive fairness in English contract law. In particular, restraint of trade, unconscionable dealing, penalty and exemption clauses, and undue influence. I conclude that in so far as a concern for equality of exchange is motivated by a concern for autonomy, the presence or absence of equality of exchange may play an evidential role in determining whether a particular contract causes autonomy harm, but it is never conclusive proof.

Keywords: SUBSTANTIVE FAIRNESS; EQUALITY OF EXCHANGE; CONTRACT THEORY; HEGEL; AUTONOMY; UNCONSCIONABILITY

Document Type: Research article

Publication date: 2010-02-01

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• Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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