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Unconscionability in European Private Financial Transactions: Protecting the Vulnerable

Edited by: Mel Kenny, James Devenney, Lorna Fox O'Mahony

ISBN13: 9780521190534
Published: June 2010
Publisher: Cambridge University Press
Country of Publication: UK
Format: Hardback
Price: £110.00

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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.

Consumer Law
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.