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‘Against Equality of Exchange’

Saprai, P; (2010) ‘Against Equality of Exchange’. King’s Law Journal , 21 (1) 71 - 95.

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Abstract

The article is a critique of a particular theory of substantive fairness in contract, or judicial interference with contract for content-based reasons, called equality of exchange. I argue that equality of exchange has weak philosophical foundations. That the Hegelian defence of equality of exchange rests on a non sequitur, and that autonomy-based defences fail to show how it promotes autonomy. I also challenge the validity of equality of exchange as a legal principle, by demonstrating that it cannot explain various instances of substantive fairness in English contract law. In particular, restraint of trade, unconscionable dealing, penalty and exemption clauses, and undue influence. I conclude that in so far as a concern for equality of exchange is motivated by a concern for autonomy, the presence or absence of equality of exchange may play an evidential role in determining whether a particular contract causes autonomy harm, but it is never conclusive proof.

Type:Article
Title:‘Against Equality of Exchange’
Location:UK
Publisher version:http://www.ingentaconnect.com/content/hart/klj/2010/00000021/00000001/art00003
UCL classification:UCL > School of Arts and Social Sciences > Faculty of Laws

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