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Title: The need for English contract law to develop a stand alone doctrine of unconscionability
Author: Reece-Davies, Patricia
Awarding Body: De Montfort University
Current Institution: De Montfort University
Date of Award: 2000
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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.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: 340 363.2 365 658 ; Law Law enforcement Prisons Management Economics