> Certainly in the UK there are many cases where "unfair" contracts can't be enforced
AFAIK there's no unfairness provisions in common law. There are two statutes about unfair clauses - UCTA (Unfair Contract Terms Act 1977) and UTCCR (Unfair Terms in Consumer Contracts Regulations 1999, the UK implementation of an EU directive). Both are mainly focused on limiting businesses trying to enforce unfair terms on consumers. UCTA limits itself to specific types terms (liability limitations etc). UTCCR is much wider in the types of terms it covers, but still only applies to 'standard form' contracts (ie not-individually-negotiated terms), and only to terms which are unfair "to the detriment of the consumer".
Ie none of them will help a bank trying to claim that one of its own standard form contracts were unfair to the bank!
Edit:
If you just meant that that the existence of this sort of legislation undermines my 'certainty of contracts' point, I disagree.
For one thing, even the more-powerful UTCCR explicitly bans the core terms of the contract (ie how much it costs and what you're getting for your money) from being considered 'unfair' -- it doesn't try to judge whether a bargain is good or bad.
For another, there's a hell of a difference between the law choosing not to enforce a term in a standard form against a consumer who probably didn't read and certainly couldn't have negotiated it, and someone objecting to a term they did write/negotiate - i.e. either an individually negotiated term or, as here, a bank objecting to a standard form term it wrote itself.
AFAIK there's no unfairness provisions in common law. There are two statutes about unfair clauses - UCTA (Unfair Contract Terms Act 1977) and UTCCR (Unfair Terms in Consumer Contracts Regulations 1999, the UK implementation of an EU directive). Both are mainly focused on limiting businesses trying to enforce unfair terms on consumers. UCTA limits itself to specific types terms (liability limitations etc). UTCCR is much wider in the types of terms it covers, but still only applies to 'standard form' contracts (ie not-individually-negotiated terms), and only to terms which are unfair "to the detriment of the consumer".
Ie none of them will help a bank trying to claim that one of its own standard form contracts were unfair to the bank!
Edit: If you just meant that that the existence of this sort of legislation undermines my 'certainty of contracts' point, I disagree.
For one thing, even the more-powerful UTCCR explicitly bans the core terms of the contract (ie how much it costs and what you're getting for your money) from being considered 'unfair' -- it doesn't try to judge whether a bargain is good or bad.
For another, there's a hell of a difference between the law choosing not to enforce a term in a standard form against a consumer who probably didn't read and certainly couldn't have negotiated it, and someone objecting to a term they did write/negotiate - i.e. either an individually negotiated term or, as here, a bank objecting to a standard form term it wrote itself.