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A History of Private Law in Scotland: Volume 2: Obligations$
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Kenneth Reid and Reinhard Zimmermann

Print publication date: 2000

Print ISBN-13: 9780198299288

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198299288.001.0001

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Judicial Control of Unfair Contract Terms

Judicial Control of Unfair Contract Terms

(p.157) 6 Judicial Control of Unfair Contract Terms
A History of Private Law in Scotland: Volume 2: Obligations


Oxford University Press

This chapter aims to explore the extent of preparation the Scottish courts had in terms of facing and regulating agreements that were unfair. Important as it is, recent years have paved the introduction of legislative regimes which empower judges to evaluate and consider the substantive fairness of some of the existing terms in contracts. This chapter attempts to address whether there is a tradition of judicial scrutiny on contract terms in the law of Scotland. It begins with a discussion on the history of areas where judicial scrutiny existed. The final sections of this chapter are dedicated to the historical bases which determine whether the direct appeal to the courts to provide relief when contractual provisions are substantively unfair existed in Scots law.

Keywords:   fairness, contracts, judicial scrutiny, contract terms, contractual provisions, terms in contracts

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