Bad Bargain Research Articles

Disabled people negotiate gender, sexual identity and self-directed social care support in England: how does choice and control operate?

Putting disabled people in charge of their own support was a central component of the UK personalisation agenda. Austerity, staff recruitment difficulties and local authority retrenchment have meant that the experience for disabled people has not always lived up to the rhetorical promise. In this context, disabled people with marginalised sexual and/or gender identities face difficult choices in everyday interactions of support that trouble the idea that control routinely sits with them. In this article, we draw on two research studies with disabled people who use self-directed support in which they discuss navigating gender and sexual identity. In both studies, there are opportunities for disabled people to draw on support that is empowering, but we also hear about ‘bad bargains’ that they are sometimes forced to make. We argue that the hard-won goals of choice and control are being degraded and confronting LGBTQI+ and non-binary disabled people with sometimes impossible dilemmas.

Non-competes in News: A Bad Bargain for Democracy

Non-competes in News: A Bad Bargain for Democracy

The Subminimum Wage Plus Tips: A Bad Bargain for Workers

The Subminimum Wage Plus Tips: A Bad Bargain for Workers

Two Huguenot Brothers: Letters of Andrew and James Coltée Ducarel, 1732–1773. Ed. Gerard de Lisle and Robin Myers.

<i>Two Huguenot Brothers: Letters of Andrew and James Coltée Ducarel, 1732–1773</i>. Ed. Gerard de Lisle and Robin Myers.

Bad Bargains

Abstract It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even ‘the Chancery mends no man's bargain’. This article considers what is meant by ‘bad bargain’, and argues that courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape bad bargains. This analysis is timely since in the current economic climate a number of long-term contracts have become especially disadvantageous to one party, and one consequence of Brexit is likely to be an increase in instances where one party tries to escape a bad bargain. Sympathy for the party which finds itself subject to a bad bargain has led to pressure on courts to find that an agreement is not binding; to expand the scope of the vitiating factors; and to liberalise the principles of interpretation and rectification, for example. It is suggested that courts should not readily bow to such pressure.

Inequality, Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

ABSTRACTIn 1720, following the crash in South Sea stock, some doubted the legal and ethical enforceability of contracts concluded on the secondary market for the purchase of future South Sea stock. This article examines the argument of David Dalrymple who drew upon civil law, natural law and the notion of a just price to advocate for the annulment of these so called ‘time bargains’. It demonstrates why Dalrymple's just price argument held a rhetorical relevance, as an ethical argument, even if the effectiveness of such a plea in both Scottish and English courts, during the early eighteenth century, is doubtful. Additionally, in setting out the context of his pamphlet and the wider debate, this article also draws attention to the emergence of a new ethical rhetoric of commerce and contracting, which argued against Dalrymple, and for the enforcement of these contracts. Lastly, this article contends that a wider conception of what constitutes the legal context of the South Sea crisis is needed, through which a deeper understanding can be gained of what role the law played in resolving the crisis and how political and ethical attitudes shaped the use of law, specifically contract law.

Making Sense of Commercial Common Sense

The article examines the use of "commercial common sense" in the interpretation of commercial contracts. It reviews the origins of the test of commercial common sense and traces the application of the test in relatively recent New Zealand and United Kingdom appellate decisions. The author's contention is that the test is only properly applied when a court asks itself which of the interpretations put forward by the parties is most consistent with the contracting parties' mutual commercial purpose. The test is not properly applied when a court prefers one interpretation to another simply because it is the court's view that the alternative would mean one party made a particularly bad bargain.

Against the Grain: A Deep History of the Earliest States by James C. Scott

Reviewed by: Against the Grain: A Deep History of the Earliest States by James C. Scott Roger L. Albin Against the Grain: A Deep History of the Earliest States. By james c. scott. New Haven and London: Yale University Press, 2017. 336 pp. $26.00 (hardcover). This concise, useful, and opinionated book is a critical overview of early state formation in Mesopotamia. The author, James Scott, is an influential social scientist known for his work on the contemporary Southeast Asian peasantry and his skepticism towards the benefits of states for ordinary people. Scott's goal is to present an alternative view of the formation and nature of the earliest states. His primary target is a received model of social evolution featuring teleological progression of human societies from foraging through sedentism-farming to state formation with very strong positive valence assigned to the emergence of states—the necessary and natural transition from savagery to civilization. This model is deeply embedded in the Western intellectual tradition and has analogues in the traditions of other civilizations. Scott's critique is based on systematic reading and analysis of secondary literature, particularly recent research, on ancient Mesopotamia, supplemented by comparative analysis of the histories of other early states. Scott's point of departure is the re-evaluation, common in the anthropological literature, of foraging. Rather than a state of precarious and constant search for food and other resources, Scott presents foraging as systematic and knowledgeable use of a variety of environmental resources, yielding sustenance with less effort and with greater variety than farming. As Scott points out, foraging was often combined [End Page 571] with forms of cultivation and there is a several millennia gap between the first evidences of plant domestication and the emergence of sedentary farming communities. He points also to examples of sedentism in the absence of full-fledged agriculture, particularly in ecologically resource-rich environments such as the alluvial plains of ancient lower Mesopotamia. Rather than being a natural and desirable transition, Scott presents the emergence of full-fledged sedentary farming societies as accompanied by increased toil, greater risk of disease, and social inequality. Scott follows Jared Diamond, who once termed the emergence of sedentary farming societies as "the worst mistake in the history of the human race."1 Scott's treatment of the emergence of early states is analogous to his discussions of farming societies. Transition to farming was a necessary precursor to state emergence, but states did not appear for millennia after the emergence of farming communities. Again, the transition from small farming communities to states appears to be a bad bargain. The great majority of inhabitants of early states were subject to increased exploitation in the forms of extractive taxation and coerced labor, intensification of warfare, and general loss of communal autonomy. Scott emphasizes the fragility of early states, pointing to increased risk of major disease outbreaks and ecological limitations that also contributed to the negative aspects of state emergence. Three of Scott's analyses are particularly interesting. First, Scott nicely describes sedentary farming communities as a novel hybrid ecosystem. This includes the suite of domesticated plants and non-human animals, and also a number of commensals and important parasites such as disease organisms, their vectors, and crop pests. This ecosystem contains co-domesticated humans, essentially the reciprocal result of plant and animal domestication. Co-domestication of humans involved major changes in social organization, including subjugation of other humans, notably women. Second, drawing on Robert Carneiro's model of early state formation and Diamond's biogeographic approach to the emergence of farming, Scott presents a thoughtful biogeographic analysis of why early states emerged in specific regions, stressing the importance of annual grain crops (wheat species, barley, rice, and perhaps maize) whose biology favored relatively easy assessment and taxation.2 Finally, Scott argues for an ironic result of emergent states, [End Page 572] that major beneficiaries were not the populations of states but rather surrounding non-state peoples, particularly major Eurasian pastoralist societies. Following such scholars as Owen Lattimore, Thomas Barfield, and Nicola Di Cosmo, Scott argues that states provided non-state peoples with opportunities for plunder and tribute, and as state emergence enhanced long-distance trade, also opportunities...

Formulaic Transparency: The Hidden Enabler of Exceptional U.S. Securitization

Why does the securitization of residential mortgages, credit cards, auto loans, and other such consumer debt in the U.S. exceed the securitization of such debt in Europe by several trillion dollars? The author points out that lemon problems do not stop the sale of used cars but they do prevent the operation of a market in which buyers place sight‐unseen bids for used cars offered by unknown sellers. Buyers prefer to know who the seller is and test‐drive vehicles. Similarly until the 1980s, creditors were willing to forgo the information they could secure in private transactions to get tradability mainly in the case of bonds issued by governments or a few blue‐chip companies.U.S. government policy encouraged the securitization of trillions of dollars of loans made to millions of borrowers. U.S. rules—rather than new financial or information technologies—have strongly encouraged originators of mortgages and other consumer loans to rely on credit scores (commonly referred to as FICO scores) produced by credit bureaus. And reliance on scores that loan originators use but don’t produce helps overcome the information asymmetry problems that would otherwise constrain securitization.The argument turns the usual concern about securitization on its head: transferring risks to investors is normally expected to discourage careful screening of borrowers, but the author’s analysis suggests that formulaic, FICO‐based screening actually enables risk transfer by reducing information asymmetry problems. Moreover, while limiting screening reduces the upfront costs of lending, it also increases loans made to uncreditworthy borrowers.And because increasing loans made to bad borrowers raises the rates good borrowers have to pay (to compensate investors for higher defaults), U.S. rules that sacrifice information for more “complete” markets may be a bad bargain.

Collective Agreements and the Wages of Rubber Tappers in Malaysia, 1954-2003: A Revisit of ‘Bad Bargains’

Drawing on collective agreements pertaining to rubber tappers in the Malaysian plantation sector for the period, 1954-2003, the authors re-examine threeconclusions of previous studies: (i) real earnings of tappers had not increased, (ii) the prosperity sharing provision in the agreements was ineffective in passing some of the windfall gains to workers; and (iii) the overall payment scheme, with fixed and flexible components, only benefited employers. These claims, if left to stand without careful re-examination, would represent a serious misinterpretation of facts. Our findings show that overall earnings have kept pace with rising inflation and the prosperity sharing mechanism benefited workers in 43 out of the 46 years since its introduction in 1959. The flexible wage system, while benefitting employers, also protected labour employment in times of rubber price downswings.

A Perspective on Consumers 3.0: They Are Not Better Decision-Makers than Previous Generations

This perspective article builds upon the theory of local thinking in interpretation and prediction of consumer behavior in a contemporary world of information overload. It is shown that even informed and socially and environmentally responsible consumers (consumers 3.0) exhibit selective recall, limited attention, and bounded search in the perception and interpretation of price and quality of purchases. Their decisions fall into local cognitive frames, which specifically focus attention only on a narrow structure and content of the choice. The cognitive frames can be established by recent or regular purchases, but also extreme or primary purchase experiences. The article includes a short conceptual review of car, food, clothing, insurance, drugs, paintings, and other product purchases showing that the local cognitive frames often lead to bad bargains across various sectors. The article presents several suggestions for future research.

Rent review: dark art or rainy sky?

Purpose – The purpose of this paper is to consider the impact on rent review clauses of a recent UK Supreme Court ruling on the interpretation and application of contractual provisions. Although the ruling in Arnold v. Britton (2015) UKSC 36 concerned service charge provisions, the court’s approach has significant implications for rent reviews where a fixed or indexed increase is intended. Design/methodology/approach – Review of the Supreme Court’s approach and findings in a case concerning clauses that provided for fixed percentage increases in long leases. Findings – It is no part of the court’s function, through the process of contractual interpretation, to rescue a party from a bad bargain. Research limitations/implications – Supreme Court ruling in Arnold v. Britton was considered in the context of recent rulings on rent review clauses. Practical implications – When drafting for a fixed or stepped increase at rent review, parties must ensure that any formulae or other provisions governing calculation produce results that are fair and in line with the parties’ actual intentions. The court will not use the process of contractual interpretation to rescue a party from a bad bargain, and will not intervene to override clear wording. Although the court has power to decide in favour of commercial common sense where a clause is ambiguous or unclear, there is a limit to the “red ink” that the court can apply, and no room for remedial interpretation where a clause is clear. Social implications – Where contract provisions are clear it is not open to the court to intervene, by means of contractual interpretation, to protect or to rescue a party who has been disadvantaged, however seriously, if the clause is clear. Where such cases arise in a contract covered by English law, or in similar common law jurisdictions, any protection must be found in statute. Originality/value – Practitioner’s review and comments on recent Supreme Court authority.

‘Her Majesty's Bad Bargain’: Richard Johns and his naval pension

On 28 June 1814 one of the most ferocious naval battles of the Anglo-American War of 1812 took place in the southern approaches to the English Channel, when HMS Reindeer engaged the USS Wasp. The b...

Freedom of Contract Under State Supervision

This study investigates the theoretical obstacles freedom of contract brings to an economy where state ownership is pervasive while the market is not sufficiently competitive such as China. Contrary to the arguments made by existing literatures that attributed all the conflicts of interest between state and private investors and related agency problems to the state ownership and dual role of state as a regulator and market player, and that adoption of unitary treatments to state and private ownerships alike as the solution, I attribute most of the obstacles in the contract law theories to the absence of a free market. In my view, scholarships have neglected the reason for the different corporate governance standards and structure in a country like China - the absence of a competitive market. Furthermore, the literatures did not address the negative implications of the theoretical difficulties in corporate governance such as conflicts of interest and incentive incompatibility that state-owned enterprises had brought to the freedom of contract. I would like to argue, within the contemporary Chinese economic framework, barring sudden massive privatization and introduction of a competitive market, the absence of competitive market requires judiciary to assume a more paternalistic role and to exercise enhanced judicial review of substantive fairness of contracts when circumstances raise the assumptions of asset striping by state-owned enterprises managers or an SOE avoiding a contract to renege a bad bargain in the name of protection of state assets. In both circumstances, I propose that only validly expressed wills could be protected by the theories of freedom of contract. The expressions of wills to strip state assets or for the state to renege a bad bargain shall not be held valid. Freedom of contract, if protected as in the West, will be abused by SOE managers for the purposes of asset stripping, and if denied solely to give SOEs a free way out of a bad bargain, will harm transactional safety and market capitalization. In both circumstances, the expression of the wills shall not be protected.

Dredged sediments as a resource for brick production: Possibilities and barriers from a consumers’ perspective

A possible solution for the oversupply of dredged sediments is their use as a raw material in brick production. Despite the fact that several examples (e.g., Agostini et al., 2007; Hamer and Karius, 2002; Xu et al., 2014) show that this application is feasible, some economic, technical and social limitations interfere with the development of a market of dredged materials in brick production in Flanders. While we describe the main characteristics of the supply side, we focus on the limitations and barriers from the demand side in the present study. Based on a consumers survey we analyze consumers’ risk perceptions and attitudes towards bricks produced from dredged sediments. Consumers in Flanders are rather suspicious with respect to bricks produced from dredged sediments and their risk perception is mainly determined by the possibility of a bad bargain (brick of inferior quality) and the connotation with chemical contamination. The willingness to pay for bricks made from dredged sediments is mainly influenced by the age of the respondents, as well environmental awareness, and the respondents’ belief in their ability to influence environmental problems. Sensitization and information of customers seems to be of primary importance to make dredged-sediment-derived bricks a successful product.

Making the Best of a Bad Bargain

This article rejoins the issues raised in Professor R.S. Sharma’s landmark paper on references to Kaliyuga as indicating a major social crisis and shows that all was not as dark as has been represented in his writings. It shows that the same texts shows the other, brighter side of Kaliyuga and argues that even this is in an attempt to promote the ideology of the upper sections of society, where bhakti or devotion to a personalised god was found most successful.

Multi-Link Leisure Developments Ltd v North Lanarkshire Council: Commercial Interpretation or Relief From a Bad Bargain?

In the 2011 decision Multi-Link Leisure Developments Ltd v North Lanarkshire Council, the United Kingdom Supreme Court purported to apply a business common sense approach to the interpretation of an option clause in a lease. In particular, several of the Lords identified that the one possible interpretation of the clause would lead to a "windfall" – a significant financial advantage – for the appellant. Their reasons hinged significantly on their view that this was a consequence inconsistent with commercial sense, which the parties were unlikely to have intended. This article analyses the relevance of a "windfall" in the context of the modern common sense approach to the construction of contracts. It concludes that the Court’s reliance upon a "windfall" of this kind goes beyond the bounds of commercial interpretation and introduces problematic notions of substantive fairness into a business common sense approach to the interpretation of contracts.

Contract Formation and the Entrenchment of Power

Conventional wisdom has it that modern contract law evolved at least in part to address problems created (or ignored) by the classical legal system. Consequently, modern contract law is different from classical contract in ways that make the current system work better than the regime it ostensibly replaced. For this to be true, however, the changes made by modern contract have to be effective in rectifying the problems engendered by the classical system. But herein lays the problem. Modern contract identified coercion in the bargaining process that produces a bad bargain as a problem serious enough to warrant a solution. The solution came in the form of “expanded” contract policing doctrines, like unconscionability, economic duress, and misrepresentation. But modern contract’s solution to the coercion/bad bargain problem has failed. Indeed, the modern system makes the coercion problem worse, because it only partially rejected classical contract, while retaining key parts of the older regime. More specifically, modern contract law leaves the core of classical contract - contract formation - completely intact. And contract formation, particularly in the doctrine of mutual assent, is where the power in contracting is created, embedded and, under modern contract law, largely immunized from effective challenge by the contract policing doctrines. Consequently, by leaving the core of contract intact, modern contract law has ensured that the expanded policing doctrines it adopted will not alleviate, let alone correct, the coercion problem. Instead, it will increase the coercive capacity of the party with superior bargaining power, particularly during contract formation, and incentivize that party to use its increased coercive capacity. So, the conventional wisdom is wrong. The differences between the classical and modern contract law systems are not the most important part of the evolutionary story. Instead, understanding the ways in which the two systems are the same is more critical in determining whether modern contract law is in fact, or will be, successful in tempering the harshest aspects of the classical contract law system.

Why advocates need to rethink manufactured housing

Manufactured homes are a major source of unsubsidized, low‐cost housing. Accounting for 30 percent of new homes nationwide, they are especially popular in the South. Seventy percent of new manufactured homes are placed on the homeowner's land. The U.S. homeownership rate would drop by almost five percentage points if owners of manufactured homes were excluded. Bias contributes to neglect of issues important to these households, which typically have low incomes and little wealth. Inattention has perpetuated bad bargains in financing, legal protection, quality, and appreciation. The “personal property” paradigm isolates manufactured housing from housing finance and contributes to depreciation. Research should identify factors contributing to appreciation, and mainstream mortgage lenders should enter the market to offer cheaper, more transparent financing. Education would help consumers navigate the marketplace. By incorporating manufactured housing into consumer‐oriented, wealth‐building developments, nonprofits could take the lead in offering buyers real value, not just low price.

The paradox in the privatization of Hungary's public housinhg: a national gift or a bad bargain?1

AbstractThe vast majority of Hungary's publicly owned, rental housing, once heavily subsidized, has passed through privatization into owner‐occupation. Most tenants hoped to gain a financial advantage by privatization. This study sets out to discover how far such expectations have been met. Bearing in mind the cost of neglected renovation, what does a new owner gain by acquiring ownership of the dwelling and what costs does he or she incur? The study shows that privatization has presented the tenants, who had already benefitted from subsidies, with a sizeable ‘national gift’. The bigger and better the home they rented, the greater their privatization gift. However, there is a paradox to analyse: why has the gift proved a burden to many recipients? The study also looks at how the adaptation occurring in the housing sector might be improved and how the losses of those who find themselves in a predicament after privatization might be reduced.