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Title: Defending substantive fairness in contract law
Author: Saprai, Prince
ISNI:       0000 0000 7724 3220
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2009
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My thesis makes three claims. First, the courts set aside contracts ('transaction avoidance') because they are substantively unfair, or unfair because of their content or outcome. In some cases, the courts try to disguise this by using the language of procedural fairness to justify transaction avoidance, ie, they say that they are setting contracts aside because of some defect in the way they were entered, usually lack of the promisor's consent caused by her incapacity or the reprehensible conduct of the promisee. However, the cases show that contracts are set aside even though there is no lack of consent. The courts try to dress these cases up in the language of procedural fairness because of freedom of contract. Freedom of contract is the most widely cited objection to substantive fairness, or judicial interference with contract for content-dependent reasons. However, I argue, and this is my second claim, that freedom of contract is not necessarily incompatible with substantive fairness. My third claim is that the existing cases of substantive fairness are morally justified by my theory of autonomy harms. According to it, a good life is an autonomous life. Substantive fairness is justified by the need to protect parties and society more generally from contracts which harm autonomy. The courts implicitly set aside contracts on content-based grounds because they cause five kinds of autonomy harm. These are, harm to: future freedom; threshold wealth; planning; valuable social forms; and the practice of undertaking voluntary obligations. I conclude that the courts should stop disguising cases of substantive fairness, and explicitly adopt autonomy harms and the taxonomy of the law it offers. This would make the legal system more transparent, and easier to criticise and reform.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available