ABSTRACT
The standard of fairness is central to much of what is discussed in this book. In one sense we have learnt that the common law does not investigate whether an exchange is fair as that is for the parties to determine, but considerations of what is fair cannot be avoided by the judiciary. When the courts come to determine what is reasonable in the circumstances or deterimine the fate of a fraudster, it is inevitable that notions of fairness will come into play. Ideas of what constitutes a fair deal or negotiation process differ considerably but there is no doubt that the matter is important to contract lawyers. While discussion of the issue is pervasive, debate about the concept has also continued in a number of specific contexts. In the last section we looked at misrepresentation and in subsequent chapters we will be concerned with the idea of unfair and unreasonable contract terms. In this chapter, we will look at a number of particular doctrines which the courts have tentatively developed in order to mitigate the most extreme types of unfairness in contract and the illegitimate use of power. We will be examining ideas around inequality of bargaining power, unconsionablility and duress. The chapter raises a number of important questions. Is there a universal notion of unfairness? Does an agreed notion of unfairness make any sense at all? Should we look to what the parties think is fair or is there a general standard that can be applied? Can any one agreement between the parties be analysed alone or should we look to the backdrop of circumstances such as age, intelligence and market position? Does our concern amount to anything more than value for money? When is intervention justified?
