Conceptualising Unconscionability in the Context of Risky Financial Transactions

Conceptualising Unconscionability in the Context of Risky Financial Transactions
Author: Olha O. Cherednychenko
Publisher:
Total Pages: 30
Release: 2017
Genre:
ISBN:

While financial services are essential for the everyday life of EU citizens and for the EU economy at large, some of them entail very high risks which may particularly affect the vulnerable in financial transactions. Thus, for example, the provision of investment services by the bank may lead to huge financial losses beyond the client's ability to pay. Similarly, the provision of a business loan to one family member on the condition that another family member stands as a surety for the whole debt may result in financial ruin for the latter. The information asymmetry and huge risks involved in some financial transactions give rise to the question of how and to what extent the vulnerable must be protected (against themselves). At present one can trace several contract-related methods of protecting the vulnerable against unconscionable financial transactions, some of which even going beyond private law. On the one hand, the influence of public law can be seen in the recourse to fundamental rights with a view to rebalancing contract law (e.g. the Bürgschaft case in Germany) and in the adoption of the financial supervision legislation in some areas containing extensive duties of care on the part of financial service providers. On the other hand, contract law itself has developed concepts which protect the vulnerable against unconscionable financial transactions. This contribution critically analyses these methods and a possible interplay between them. It is argued that recourse to fundamental rights cannot effectively resolve the problem of contractual unfairness. What is needed is a further development of contract law concepts of unconscionability taking into account the contract-related rules in the financial supervision laws and, possibly, even the integration of the two. Special attention in this respect must be paid to the role of the vulnerable at the (pre-) contractual stage.

Unconscionability in European Private Financial Transactions

Unconscionability in European Private Financial Transactions
Author: Mel Kenny
Publisher: Cambridge University Press
Total Pages:
Release: 2010-06-24
Genre: Law
ISBN: 1139487965

Given the unprecedented recent turmoil on financial markets we now face radically challenged, 'post-Lehmann' assumptions on protecting the vulnerable in financial transactions. This collection of essays explores conceptions of, and responses to, unconscionability and similar notions across Europe with specific reference to financial transactions. It presents a detailed analysis of concepts of unconscionability in Europe against a backdrop of Commission initiatives aimed, variously, at securing a single market in financial services, producing greater coherence in EC consumer protection law and consolidating European private law. This analysis illustrates, for example, that concepts of unconscionability depend on context and can be shaped by a variety of factors. It also illustrates that jurisdictions may choose to respond to questions of unconscionability through a variety of legal instruments located in different branches of the law rather than through a single doctrine. Thus this collection illuminates many of the obstacles facing harmonisation in this area.

Reforming Corporate Retail Investor Protection

Reforming Corporate Retail Investor Protection
Author: Diane Bugeja
Publisher: Bloomsbury Publishing
Total Pages: 249
Release: 2019-12-12
Genre: Law
ISBN: 1509925880

The spate of mis-selling episodes that have plagued the financial services industries in recent years has caused widespread detriment to investors. Notwithstanding numerous regulatory interventions, curtailing the incidence of poor investment advice remains a challenge for regulators, particularly because these measures are taken in a 'fire-fighting' fashion without adequate consideration being given to the root causes of mis-selling. Against this backdrop, this book focuses on the sale of complex investment products to corporate retail investors by drawing upon the widespread mis-selling of interest rate hedging products (IRHP) in the UK and beyond. It brings to the fore the relatively understudied field concerning the different degrees of investor protection mechanisms applicable to individual retail investors – as opposed to corporate retail investors – by taking stock of past regulatory reforms and forthcoming regulatory initiatives as well as, more importantly, the conclusions reached by the judiciary in IRHP mis-selling claims. The conclusions are particularly interesting: corporate retail investors are in a vulnerable position when compared to individual retail investors. The former are exposed to a heightened risk of mis-selling, meaning that regulatory intervention should be targeted accordingly. The recommendations made as a result of these findings are further supported by insights emerging from behavioural law and economic theories. This book is aimed at researchers, lawyers and students with an interest in the financial regulation field who are keen to explore potential regulatory reforms to the investment services regime that address the root causes of mis-selling, and restore a level playing field amongst all retail investors.

Creditworthiness and 'Responsible Credit'

Creditworthiness and 'Responsible Credit'
Author: Noah Vardi
Publisher: BRILL
Total Pages: 287
Release: 2022-09-12
Genre: Law
ISBN: 900452505X

In this comparative study in US and EU law, Noah Vardi questions whether there is a legally enforceable duty to lend and borrow credit in a “responsible” manner and clarifies the associated notion of “creditworthiness.”

The Involvement of EU Law in Private Law Relationships

The Involvement of EU Law in Private Law Relationships
Author: Dorota Leczykiewicz
Publisher: Bloomsbury Publishing
Total Pages: 492
Release: 2013-03-12
Genre: Law
ISBN: 1782251049

The involvement of the EU in regulating private conduct and relationships between individuals is increasing. As a result, EU law affects the scope of private autonomy in ever wider contexts, sparking tensions with fundamental concepts of national private law systems. This volume offers a descriptive and normative account of the involvement of EU law in private law relationships. The recurring theme in the collected papers is the scope of policy objectives which are apt to legitimise the European Union's as yet unsystematic tendency to serve as a source of restrictions of private autonomy. The nature and purpose of the involvement of European Union law in private law relationships is investigated by the authors from both the substantive and the constitutional perspective. The papers look at such sectors regulating private law relationships as consumer law, labour law, competition law, equal treatment law and the law of remedies. While focusing on private law relationships the authors investigate more general concepts of EU law, such as the Internal Market freedoms and general principles of law, and the different modes of ensuring the effective application of EU secondary law.

Medieval Economic Thought

Medieval Economic Thought
Author: Diana Wood
Publisher: Cambridge University Press
Total Pages: 272
Release: 2002-10-17
Genre: Business & Economics
ISBN: 9780521458931

This book is an introduction to medieval economic thought, mainly from the twelfth to the fifteenth centuries, as it emerges from the works of academic theologians and lawyers and other sources - from Italian merchants' writings to vernacular poetry, Parliamentary legislation, and manorial court rolls. It raises a number of questions based on the Aristotelian idea of the mean, the balance and harmony underlying justice, as applied by medieval thinkers to the changing economy. How could private ownership of property be reconciled with God's gift of the earth to all in common? How could charity balance resources between rich and poor? What was money? What were the just price and the just wage? How was a balance to be achieved between lender and borrower and how did the idea of usury change to reflect this? The answers emerge from a wide variety of ecclesiastical and secular sources.

Acceptable Risk

Acceptable Risk
Author: Baruch Fischhoff
Publisher: Cambridge University Press
Total Pages: 228
Release: 1981
Genre: Business & Economics
ISBN: 9780521278928

A framework for making decisions about risks, with recommendations for research, public policy, and practice.

Home Equity and Ageing Owners

Home Equity and Ageing Owners
Author: Lorna Fox O'Mahony
Publisher: Bloomsbury Publishing
Total Pages: 311
Release: 2012-01-06
Genre: Law
ISBN: 1847319025

The growing use of housing equity to support a range of activities and needs raises complex issues, particularly for older owners. In an environment in which older owners are pushed towards housing equity transactions to meet income and welfare costs, they are required to make choices from a complex and sometimes bewildering range of options. The transactions which facilitate the use of home equity as a resource to spend in later life - from 'trading down' and 'ordinary' secured and unsecured debt to targeted products including reverse/lifetime mortgages, home reversion plans and sale-and-rentback agreements - raise important legal and regulatory issues. This book provides a contextual analysis of the financial transactions that older people enter into using their housing equity. It traces the protections afforded to older owners through the 'ordinary' law of property and contract, as well as the development of specific regulatory protections focused on targeted products. The book employs the notion of risk to highlight the nature and causes of the 'situational' vulnerabilities to which older people are now subject as 'consumers' of housing equity, showing that the older owner's personal situation is crucial in determining whether and why they may seek to release equity, the options and products available to them, and the impact of harms resulting from adverse transactions. The book critically evaluates the extent to which this context is incorporated in the legal frameworks through which these transactions are governed, as a measure of the 'appropriateness' of existing legal provision, as well as considering the arguments surrounding 'special protection' for older owners in housing equity transactions.