The Unconscionable Bargains Doctrine in England and Australia: Cousins or Siblings?

Abstract

In discussions concerning the modern equitable unconscionable bargains doctrine, judges and commentators often draw seamlessly from English and Australian law as though they are siblings from the same family. In reality, their doctrinal elements are substantively and substantially different, and these reflect three core points. First, English and Australian law respectively imposes a negative and positive duty on contracting parties. Secondly, the legal policy underlying equitable intervention in completed contracts is much narrower and targeted in England than it is in Australia. Thirdly, ‘unconscionability’ means different things in the two jurisdictions. Ultimately, the Australian and English iterations of the doctrine are cousins rather than siblings, which counsels caution as to how the doctrine should be approached from a comparative perspective.