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The concept of inequality of bargaining power was long recognised, particularly with regard to workers. In the Wealth of Nations Adam Smith wrote, . It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms.
The law presumes that in certain classes of special relationship, such as between parent and child, or solicitor and client, there will be a special risk of one party unduly influencing their conduct and motives for contracting. As an equitable doctrine, the court has the discretion to vitiate such a contract.
Unconscionability (sometimes known as unconscionable dealing/conduct in Australia) is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience.
In the former case the question is "what did the parties intend by the words used in the agreement which they made": in the latter, the questions are (i) "was there an proposal (or "offer") made by one party which was capable of being accepted by the other" and, if so, (ii) "was that proposal accepted by the party to whom it was made". [32]
A standard form contract (sometimes referred to as a contract of adhesion, a leonine contract, [a] a take-it-or-leave-it contract, or a boilerplate contract) is a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it ...
In contract theory, mechanism design, and economics, an information asymmetry is a situation where one party has more or better information than the other. Information asymmetry creates an imbalance of power in transactions, which can sometimes cause the transactions to be inefficient, causing market failure in the worst case.
In common law jurisdictions, a misrepresentation is a false or misleading [1] statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. [2] [3] The misled party may normally rescind the contract, and sometimes may be awarded damages as well (or instead of rescission).
[1] [2] One person for any variety of possible reasons will have more power in the relationship. One of the ways Waller proposed for this uneven balance was the Principle of Least Interest. In a relationship with uneven power distribution, one of the partners gets more out of a relationship, be it emotionally, physically, or monetarily than the ...