Book contents
- Frontmatter
- Contents
- List of contributors
- Introduction: conceptualising unconscionability in Europe
- PART I Conceptualising unconscionability
- 1 Freedom of contract as freedom from unconscionable contracts
- 2 Protection of weaker parties in English law
- 3 Freedom of contract, unequal bargaining power and consumer law on unconscionability
- 4 Loyalty as a tool to combat contractual unfairness: a French perspective
- 5 Unconscionability and the value of choice
- 6 From individual conduct to transactional risk: some relational thoughts about unconscionability and regulation
- 7 An economic perspective on legal remedies for unconscionable contracts
- PART II Conceptualising unconscionability in financial transactions
- Conclusions
- Index
- References
3 - Freedom of contract, unequal bargaining power and consumer law on unconscionability
from PART I - Conceptualising unconscionability
Published online by Cambridge University Press: 06 August 2010
- Frontmatter
- Contents
- List of contributors
- Introduction: conceptualising unconscionability in Europe
- PART I Conceptualising unconscionability
- 1 Freedom of contract as freedom from unconscionable contracts
- 2 Protection of weaker parties in English law
- 3 Freedom of contract, unequal bargaining power and consumer law on unconscionability
- 4 Loyalty as a tool to combat contractual unfairness: a French perspective
- 5 Unconscionability and the value of choice
- 6 From individual conduct to transactional risk: some relational thoughts about unconscionability and regulation
- 7 An economic perspective on legal remedies for unconscionable contracts
- PART II Conceptualising unconscionability in financial transactions
- Conclusions
- Index
- References
Summary
Introduction
This chapter examines the compatibility of the common law concept of unconscionability with various categories in civil law, with particular reference to Spanish legislation, which has no general principle that corresponds directly to that of unconscionability, at least to the extent that this term exists in common law systems. Yet, Spanish law, in Article 1255 of the nineteenth-century Spanish Civil Code (hereafter CC), also provides a number of disparate tools that limit the basic principles of freedom of contract and free will, thereby offering similar remedies to those available in common law. The chapter focuses on the interpretation of the general good faith clauses contained in Articles 1258 CC and 116–7 of the Catalan Civil Code (hereafter CCCat) as a general remedy in a nineteenth-century liberal Civil Code, as well as additional prohibitions such as pactum commissorium. It then analyses an unusual text in the Spanish system that seeks to counter the imbalance between parties: the 1908 Act for the Repression of Usury. Finally, I conclude by turning my attention to the present-day situation which defends the rights of the weaker parties in consumer law and, in particular, to unfair contract terms (UCT).
Freedom of contract and the interpretation of the good faith clause in the Spanish Civil Code of 1889
The nineteenth-century Spanish Civil Code was founded on the basis of liberal doctrine and, as such, freedom of contract was placed at the heart of its contractual regulations.
- Type
- Chapter
- Information
- Unconscionability in European Private Financial TransactionsProtecting the Vulnerable, pp. 46 - 61Publisher: Cambridge University PressPrint publication year: 2010
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