Unconscionability is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, because the consideration offered is lacking, or is so obviously inadequate, that to enforce the contract would be unfair to the party seeking to escape the contract.
In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property which enables the creditor to have recourse to the property if the debtor defaults in making payment or otherwise performing the secured obligations. One of the most common examples of a security interest is a mortgage: a person borrows money from the bank to buy a house, and they grant a mortgage over the house so that if they default in repaying the loan, the bank can sell the house and apply the proceeds to the outstanding loan.
The Settled Land Acts were a series of English land law enactments concerning the limits of creating a settlement, a conveyancing device used by a property owner who wants to ensure that provision of future generations of his family.
The equity of redemption refers to the right of a mortgagor in law to redeem his or her property once the debt secured by the mortgage has been discharged.
Mortgage Corporation v Shaire [2001] Ch 743 is a widely reported English land law case relating to the Trusts of Land and Appointment of Trustees Act 1996. Such a status specifically flowed from an instance of non est factum mortgage fraud where the mortgage lender and the defrauded co-owner wished to accelerate and delay sale respectively. The case is relevant to matrimonial law in that the respective equitable shares in the home awarded to Mrs Shaire and Mr Fox in 1987 matrimonial proceedings were never defined and it fell to the court to define these.
Johnson v Agnew [1980] AC 367 is a landmark English contract law case on the date for assessing damages. Lord Wilberforce decided that the date appropriate is the date of breach, or when a contracting party could reasonably be aware of a breach.
Note in the UK a lender can take possession of a person's home due to default on a mortgage. This process is incorrectly often known as mortgage repossession; however assets can only be repossessed if the lender was the seller, which is often the case with cars but not usually houses. The correct terminology is possession. The process typically involves obtaining firstly an order for possession in the courts, then an eviction warrant. The eviction is carried out by bailiffs. Once the lender has obtained possession, it can then sell the home to recoup any lost arrears.
Unconscionability in English law is a field of contract law and the law of trusts, which precludes the enforcement of voluntary obligations unfairly exploiting the unequal power of the consenting parties. "Inequality of bargaining power" is another term used to express essentially the same idea for the same area of law, which can in turn be further broken down into cases on duress, undue influence and exploitation of weakness. In these cases, where someone's consent to a bargain was only procured through duress, out of undue influence or under severe external pressure that another person exploited, courts have felt it was unconscionable to enforce agreements. Any transfers of goods or money may be claimed back in restitution on the basis of unjust enrichment subject to certain defences.
Re Gray’s Inn Construction Co Ltd [1980] 1 WLR 711 is a leading UK insolvency law case, concerning the cessation of transactions without court approval after a winding up petition.
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal system established by William the Conqueror after 1066, and with a gradually diminishing aristocratic presence, now sees a large number of owners playing in an active market for real estate. The modern law's sources derive from the old courts of common law and equity, along with legislation such as the Law of Property Act 1925, the Settled Land Act 1925, the Land Charges Act 1972, the Trusts of Land and Appointment of Trustees Act 1996 and the Land Registration Act 2002. At its core, English land law involves the acquisition, content and priority of rights and obligations among people with interests in land. Having a property right in land, as opposed to a contractual or some other personal right, matters because it creates privileges over other people's claims, particularly if the land is sold on, the possessor goes insolvent, or when claiming various remedies, like specific performance, in court.
Medforth v Blake[1999] EWCA Civ 1482 is a UK insolvency law case concerning the duties of a receiver and manager in the United Kingdom, over and above a duty of good faith, as to the manner in which he conducts a business.
Downsview Nominees Ltd v First City Corp Ltd [1992] UKPC 34 is a New Zealand insolvency law case decided by the Judicial Committee of the Privy Council concerning the nature and extent of the liability of a mortgagee, or a receiver and manager, to a mortgagor or a subsequent debenture holder for his actions.
Silven Properties Ltd v Royal Bank of Scotland[2003] EWCA Civ 1409 is an English land law case, concerning the behaviour of receivers appointed under mortgages. It affirmed the proposition that a lender are not required to incur expenses that would likely delay a sale beyond the normal period of marketing.
Cuckmere Brick Co v Mutual Finance[1971] EWCA Civ 9 is an English tort law case, establishing the lender must publish/promote the materially beneficial key, intrinsic facts as to land in mortgage repossession sales. As it affects the duty of mortgagees, to that extent it can be considered within the periphery of English land law also.
Ropaigealach v Barclays Bank plc [2000] QB 263 is an English land law case, concerning mortgage arrears and a rare mortgage over a family home which had a right to enter a home and sell it without a court order.
Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343 is an English land law case, concerning mortgage arrears.
Mortgages in English law are a method of raising capital through a loan contract. Typically with a bank, the lender/mortgagee gives money to the borrower/mortgagor, who uses their property/land/home as security that they will repay the debt and any relevant interest. If the mortgagor fails to repay, then the mortgaged property which has been used as security may be subject to various mortgagee remedies allowing them to retrieve the debt. Mortgages are an important part of English land law and property law. These concern, first, the common law, statutory and regulatory rules to protect the mortgagor at the time of concluding the mortgage agreement. Second, English law defines and restricts the process for taking possession of property in the event of default. Third, it places duties on mortgagees on the price it achieves when selling property.
Cukurova Finance International Ltd & Anor v Alfa Telecom Turkey Ltd[2009] UKPC 19, P.C., [2012] UKPC 20, [2013] UKPC 2, [2013] UKPC 20, [2013] UKPC 25 and [2014] UKPC 15 were a series of judicial decisions of the Judicial Committee of the Privy Council, one of which is a leading case on the remedy of appropriation for security interests that was introduced into United Kingdom law under the Financial Collateral Arrangements (No.2) Regulations 2003, which implemented the Financial Collateral Arrangements Directive. Together with its related appeals on preliminary and subsequent issues, it has defined the scope of the remedy, as well as what equitable relief may be available.
Welsh Development Agency v Export Finance Co Ltd [1992] BCLC 148 is a judicial decision of the English Court of Appeal. The decision related to a number of aspects relating to complex financing arrangement, but is most often cited for the decision in relation to recharacterisation.
Mallone v BPB Industries plc [2002] EWCA Civ 126 is a UK labour law case, concerning control of an employer's discretion.
