The need for English contract law to develop a stand alone doctrine of unconscionability
The subject of this study is long-term, contract-based relationships, demonstrated
through a variety of cases in the music industry. An alternative legal approach, the
hypothetical doctrine of unconscionably constructed contracts, is propounded,
compared with existing law and tested against prominent and recent cases.
Observational knowledge gained over fifteen years of experience and contact with
writers, performers, managers, agents and lawyers, led to the study. Thus, that industry
was specifically considered, although there may be other industries where the concept
could be applied.
Because the relationships discussed are vulnerable to breakdown causing costly
litigation, current rules and doctrines may fall short of providing adequate advice and
governance to a needy business class.
Whatever the outcome, judicial ruling and cost to the various parties, cases with similar
root cause and argument recur time and again, decade after decade. Neither side,
creative nor corporate appears to learn enough from experience. Their inability to
understand guidance and governance offered by the law is examined, as are other
possible reasons for their apparent recalcitrance.
Relevant areas of contract law are found to be undue influence, restraint of trade and
inequality of bargaining power. Underlying judicial concern over public policy and
unconscionable behaviour is recognised as important.
Combined with the study of contract law theory and practices, is an examination of the
nature of the parties, creative and corporate. Economic, personal and commercial
factors which influence their behavioural patterns have been analysed. Economics
analysis methodology combined with behavioural and personality analysis has led to an
understanding of those aspects of long-term contractual conduct which are often the
cause of relational breakdown.
The music industry is seen to be receptive to improvements offered by thoughtfully
structured law. The parties anticipate intervention and attempt to utilise rules of law in
building and severing their obligation to each other. Therefore, it is believed here that
the hypothetical doctrine offered would give tighter definition, resulting in better
practice in the preparation of contracts and reduce the frequency of costly litigation.