Making the Case for Statutory Expansions of Unconscionability

Abstract

This paper makes a case in favour of the statutory expansion of the equitable doctrine of unconscionability. By way of background, the paper investigates: the theoretical origins of unconscionability, the role of the doctrine within the law of contract and the elements required to satisfy the doctrine. This is followed by consideration of the present doctrine’s limitations and inadequacies. The paper then compares statutory enhancement of the doctrine in New Zealand with the more comprehensive approach taken in Australia. The paper considers the benefits and addresses the potential disadvantages of adopting a comprehensive statutory expansion of the doctrine in New Zealand. The author concludes that New Zealand legislators ought to adopt unconscionability provisions within present consumer protection legislation, in a comparable form to that taken in Australia.