Members Area
    
 
   

CIVIL LAW

Contracts - Do they have to be Fair?

 Select Topic
 
 Related Topics
Feedback/Reviews/Blogs


                      CONTRACTS

UNFAIR? 

UNCONSCIONABLE? 

UNDUE INFLUENCE? 

DURESS?

This topic deals with the rare cases when a Court can decide whether a contract should be declared unenforceable because its terms are unfair. 

We will examine the the circumstances when a Court might declare that a contract is invalid because of duress or because one party was subject to an undue influence.

We will also examine the legal concept of the unconscionable bargain.

NO GENERAL RULE

There is certainly no rule of law that a contract has to be fair. 

Our Courts have no general power, except in clearly exceptional cases, to hold that a contract should not be enforceable because it is unfair as between the parties to that contract.

However, because the essence of a true agreement is consent then it is only logical that any agreement or consent contained by a threat or by clear undue persuasion is not in fact a true agreement or a true consent. 

Over quite a long time our Courts have developed legal principles known as duress and undue influence and have more recently developed a concept of an unconscionable bargain.   These three principles are examined in basic terms below.

Duress

Undue Influence

Unconscionable Bargain

If you think that your contract has been affected by one of the above principles then you should obtain some further advice and and try and get your hands on a copy of the comprehensive textbook on The Law of Contract in New Zealand written by Burrows Todd and Finn.    It's well worth a read.

DURESS

There are many kinds of fact situations which could constitute duress. &-

.....The first part of this topic has been displayed free of charge. Join up for $45 to have access to this and all other topics!


Feedback/Reviews/Blogs
Feedback/Blogs/Reviews from related topic: Arbitration
"Membership No 186685
I have been unable to acquire any case law in regards to bankruptcy. I am thge alleged defendant in the matter and have opposed the application for bankruptcy as I am not the defendant. The case is now at the stage of the high court requiring a synopsis under 251a, I wish to make submissions in not being notified of the hearing at the district court after the notice of proceeding was served. The matter then got judgement without my knowledge and is now before the high court for bankruptcy. Please advise the procedure to locate any supportive case law that may assist with my application to set aside the bankrupcy claim.

Kindest Regards
A.Marsh
I "

"You will certainly get a rehearing if you were not notified but, if you simply misread the documents you were originally served with then you could be in trouble. You must actively follow up on your obligation to file and serve a defence and not just wait for the Court to come to you. Good luck . . . Netlaw "
"Likewise . . . very helpful. Thanks. Gerald - May 2007 - Tauranga"
"Received notice from a creditors lawyer that they wish to put in companiy into liquidation and I have up to today upon receiving their letter. A Statory Demand was intially sent on 7 Aril 2008, which I reponded with a reply explaining that an arrangement (verbal) had been entered in by both parties which was to continue supply, once company got post dated cheques, company stopped surpply and but still continued to present cheques which was not the agreement which was entred into.
What position does that leave me if I want to legal challenge this. Without causing me excessive expresses.

Rina

Netlaw responds: If you say that they cannot properly sue because there was a new agreement for time payment, then you can apply for an injunction saying that the Statutory Demand Notice is wrong. But it will cost you. An injunction should not be done without legal advice. Type up a Statement setting out precisiely all the facts as you know them and see a lawyer as soon as possible. A letter shouid be sent to the other side saying how inappropriate the Demand procedure is when the subsequent agreement between the parties was made and kept by you. But you must get your facts right!"

Feedback/Blogs/Reviews from related topic: Arbitration
"Helpful, but I would like some more fact scenarios to assit me in my decision . . . but it was the best site I found because it ties all relevant sites together. Not too many fancy words. Wheelbarrow and corrugated iron are about my limits. Well done! John D. - Hamilton June 2007"
Feedback/Blogs/Reviews from related topic: Arbitration
"I found all these contract topics interesting and helpful. JD. Napier December 2006"
Feedback/Blogs/Reviews from related topic: Arbitration
"I am a retired Solicitor from Kent in England and the $45 I spent on your site was really helpful because I am intending settling in New Zealand and your "one stop shop" was a real boon to me. Thanks again. Arnold T. Devon, England"
Feedback/Blogs/Reviews from related topic: Arbitration
"I found this interesting. I want to sue for punitive damages and I was interested to learn that our courts are pretty conservative. I think the Welfare have quite wrongly taken my kids and I have found out that the affidavit they gave to a Judge to get an order to uplift them was known to the Welfare to be incorrect. They told the Judge that I had drug convictions but when I found out 5 months ago that they thought that I proved then to them that this was untrue yet I have now found that they have still put this false evidence in an affidavit. But they have also told other people about my "drug convictions". You have to watch these people. (name witheld) - May 2007"
Feedback/Blogs/Reviews from related topic: Arbitration
"The fact examples or samples really helped me. Your topic also gave me confidence to speak up for myself. My case was a simple car accident but the other driver wouldn't pay and my lawyer was going to charge me $700 just to help. Netlaw allowed me successfully to "go it alone". Thanks. Thanks. I am on to making my own will now. Miriam (and hubbie)"
Feedback/Blogs/Reviews from related topic: Arbitration
"Very, very helpful topics on Employment law, procedure, contracts and tips. Well worth the cost.

Company name withheld by request."

Feedback/Blogs/Reviews from related topic: Arbitration
"Richwhite and Fay should have signed up for Netlaw. It would have been money better spent. Great work, Netlaw. - Brett H - North Shore"
Feedback/Blogs/Reviews from related topic: Arbitration
"The fact examples or samples really helped me. Your topic also gave me confidence to speak up for myself. My case was a simple car accident but the other driver wouldn't pay and my lawyer was going to charge me $700 just to help. Netlaw allowed me successfully to "go it alone". Thanks. Thanks. I am on to making my own will now. Miriam (and hubbie)"
 Select Topic
 
 Related Topics