Confused in Words: Unconscionability and the Doctrine of Penalties
journal contributionposted on 29.10.2019 by PD Baron
Any type of content formally published in an academic journal, usually following a peer-review process.
This paper is concerned with the role of unconscionability in the doctrine of penalties. It argues that unconscionability, although clearly a requirement in the Australian doctrine of penalties, is an elusive concept that has given rise to much confusion. This is because of the general uncertainty of the doctrine, ambiguity in the meaning of the term 'unconscionability' and uncertainty as to whether unconscionability is a separate requirement in determining whether a liquidated damages provision is a penalty. This paper argues that if unconscionability is to continue as a requirement in judicial determination of penalties, the courts should maintain a robust and relatively narrow notion of unconscionability. This is because the very purpose of liquidated damages clauses is to avoid uncertainty and litigation and to minimise the likelihood and costs of disputes. Ironically, the continued uncertainty surrounding the concept of 'unconscionability' - and therefore the doctrine of penalties as a whole - means that liquidated damages clauses actually perpetuate, rather than avoid, these problems.