Does the unconscionability doctrine require a resulting improvident bargain?

Newfoundland and Labrador, Canada


The following excerpt is from Downer v Pitcher, 2017 NLCA 13 (CanLII):

Jettisoning the requirement of a resulting improvident bargain as a requirement for the application of the unconscionability doctrine, and affirming it, instead, as an important consideration in determining whether a position of inequality existed and whether it was unfairly taken advantage of will bring the doctrine into line with the early English cases which placed emphasis on vulnerability resulting from a disparity of bargaining positions and the taking advantage of that vulnerability. See for example, Chesterfield v. Janssen (1750), 2 Ves. Sen. 125 where Lord Hardwicke stressed the need to “prevent taking surreptitious advantage of the weakness or necessity of another.”

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