英國契約法에 있어서 文涉力의 不均衡 法理

Abstract

Contract is generally established by the correspondence of offer and acceptance. Since the subjects of a contract should be natural persons or judical persons who are equivalent in terms of capability, it does not matter the economic power, social influence, and the ability of collecting information of both parties. Under freedom of contract each party makes a contract based on its judgement. However, as economy recently grows fast, goods and transactions become complicated. One party is often put on a weaker position comparing to other party with regard to knowledge and information. Thus each party's power relationship should be reflected in the contents of a contract. As a result, unfair contract contents are appeared in many ways. In this case, the protection of weaker party has been problems in diverse perspectives. The doctrine of inequality of bargaining power in this paper becomes a new approach and a notable area in recent English contract law. This paper is consisted of as follows. Firstly, we introduce the traditional doctrine of English such as duress and undue influence institution. Secondly, we consider the process of making doctrine of inequality of bargaining related to important cases. In particular, we review the statement of Lord Denning in Lloyds Bank Ltd. v. Bundy. Thirdly, we consider critical opinions about this doctrine, i.e., the criticism of Lord Scarman proposed by National Westminster Bank v. Morgan. Finally, we draw conclusions for present situations about this doctrine.