Abstract

This paper examines the doctrine of unconscionable bargains in English contract law through the lens of intersectionality. It argues that the current three-limbed test — which requires serious disadvantage, morally culpable exploitation, and oppressive terms — is ill-suited to address the structural and overlapping forms of disadvantage that constrain meaningful consent.

Drawing on critical legal theory, intersectionality, and comparative jurisprudence from Australia, the paper proposes a revised doctrinal framework. This includes a broader definition of vulnerability, a constructive knowledge threshold for defendants, and a reoriented understanding of equitable responsibility. The revised test retains doctrinal clarity while aligning the law with a more realistic account of agency and fairness.

By reframing unconscionability around relational autonomy and intersectional disadvantage, the paper contributes to ongoing debates about equity’s role in private law and challenges the fiction of neutrality that underpins current contractual assumptions.

1. Introduction

The doctrine of unconscionable bargains in English contract law is a narrow doctrine of equity that purports to guard against exploitative contractual conduct. Traditionally, courts have applied the narrow three-limbed test found in Alec Lobb (Garages) Ltd v Total Oil (GB) Ltd requiring (i) serious disadvantage or weakness in the claimant, (ii) morally culpable exploitation by the defendant, and (iii) oppressive contractual terms.[1] This framework, however, is increasingly out of step with contemporary understandings of vulnerability, decision-making, and structural inequality. By defining "disadvantage" primarily in terms of individual incapacity or folly, and by demanding a high threshold of moral culpability on the part of the stronger party, English law has effectively precluded judicial recognition of how systemic and intersectional disadvantage distorts meaningful contractual consent. 

This paper asks whether the first limb of the doctrine—the claimant’s “weakness,” “vulnerability,” or “serious disadvantage”—should be redefined through the lens of intersectionality. In particular, it investigates whether the law’s classical focus on individual incapacity or folly, coupled with its demand for a high threshold of moral culpability, precludes judicial recognition of how systemic and intersecting forms of disadvantage distort meaningful contractual consent.

Originally articulated by Crenshaw, intersectionality analysis highlights how overlapping structures of power—such as race, gender, class, disability, and immigration status—interact to produce forms of disadvantage that cannot be reduced to a single axis.[2] As Fineman observes, “privileges and disadvantages accumulate across systems and can combine to create effects that are more devastating or more beneficial than the weight of each separate part.”[3] This framework exposes how disadvantage in contracting arises not only from individual weakness or error, but from the cumulative effects of structural inequality.

The paper proceeds in four stages. Section II examines the historical foundations of the unconscionability doctrine and explains why its three limbs are inadequate when measured against contemporary inequalities. Section III interrogates the liberal assumptions of autonomy and equality underpinning English contract law, developing an intersectional conception of vulnerability and situating it within wider theoretical debates. Section IV turns to comparative analysis, focusing on Australian case law and its imposition of a constructive knowledge standard on stronger parties. Section V then sets out a proposed reformed test and considers its coherence with other equitable doctrines.

1. Classical Doctrine & Its Limits

At the core of English contract law lies a liberal orthodoxy: that contracting parties are autonomous, rational agents, presumed to act freely and in their own self-interest.[4] This classical framework presupposes a level playing field without considering the social, economic, and institutional conditions that shape contractual behaviour. The imagined “liberal subject” underpins not only the doctrinal structure of contract law but also its moral justification. It explains why the role of the law is seen as enforcing bargains rather than scrutinising their fairness. 

The Alec Lobb tripartite test inherits this orthodox vision, embedding assumptions of autonomy and equality into the unconscionability doctrine.[5] Under this framework, a person’s consent is inherently treated as automatically valid, and responsibility for the resulting obligations is exclusively borne by that individual. However, it fails to recognise that agency is always exercised within social and structural constraints, often shaped by power imbalances, institutional exclusion, and material deprivation. Furthermore, by structuring relief around three requirements, the doctrine risks framing unconscionability in overly rigid terms, leaving little room to recognise vulnerabilities produced by wider structural inequalities. Each element of the test is increasingly ill-suited to address the structural and intersectional dimensions of modern economic inequality, being constrained by the classical liberal framework.

2.1 The Problematic Construction of “Weakness”

The first limb of the doctrine hinges on the claimant’s "serious disadvantage," historically grounded in characteristics such as poverty, ignorance, or lack of independent advice. Early formulations, as in Fry v Lane (1889), focused on protecting “poor and ignorant” individuals entering transactions at a significant undervalue without independent advice, imposing on the defendant the burden of proving the transaction was “fair, just and reasonable.”[6] Later, Cresswell v Potter [1978] modernised this language, replacing “ignorant” with “a member of the lower income group” who was “less highly educated,”[7] but the basic logic remained unchanged: weakness is viewed as a deviation from the rational contracting subject.

Subsequent cases such as Backhouse v Backhouse, which granted relief to a wife signing away matrimonial property,[8] continued to conceptualise disadvantage as personal weakness rather than socially embedded inequality. By the time Alec Lobb v Total Oil [1983] imposed its tripartite test, disadvantage had become tethered to the notion of the rational, autonomous contracting subject: only deviations from this idealised norm counted as “serious” enough to justify intervention.

This foundation inaccurately constructs vulnerability as a personal anomaly rather than a socially embedded condition.[9] In doing so, the doctrine individualises what are in reality systemic disadvantages, such as those arising from racialised poverty, gendered caregiving responsibilities, or disability-based exclusion. Intersectionality analysis makes clear why this individualised approach is inadequate, revealing how the current framework is unable to accommodate the compounding effects of multiple, intersecting disadvantages.

Intersectionality theory, as articulated by Crenshaw, reveals how overlapping systems of power related to race, gender, class, disability, and other identity markers create unique and intensified forms of subordination that are often invisible to legal frameworks designed to address singular grounds of discrimination.[10] Crenshaw first introduced the concept to expose how Black women’s experiences of discrimination were rendered invisible within both feminist and anti-racist legal frameworks, which treated race and gender as separate, non-interacting categories. Her work highlights the need for legal analysis that reflects the lived reality of multiple, simultaneous forms of subordination. Yet the weakness limb, as currently interpreted, does not capture this reality.

A further difficulty lies in the fact that, as Tsurada notes, if a claimant wants to successfully establish the weakness requirement to rely on the doctrine of unconscionable bargains, they must “highlight their powerlessness in the formation process and present their contracting experience as if it were aberrational.”[11] As Williams explains, “[i]t is this experience of having, for survival, to argue for our own invisibility … [which] is both paradoxical and difficult for minorities to accept.”[12] In England and Wales, the self-proclaimed weaker party must characterise themselves as suffering from a “serious disadvantage” akin to incapacity or incompetence (Fry v Lane, Cresswell v Potter) — a framing that both obscures the structural conditions shaping their decisions and risks repelling claimants who are understandably reluctant to portray themselves as irrational or deficient.[13] By requiring claimants to present themselves in this reductive way, which may not be the way they perceive themselves, the doctrine risks inadvertently discouraging claimants from bringing claims, limiting the doctrine’s practical reach.

2.2 The Culpability Requirement

The second limb—requiring that the stronger party act in a "morally culpable" way—further narrows the doctrine’s utility. As noted in Multiservice Bookbinding Ltd v Marden, mere knowledge of the claimant’s disadvantage is not sufficient; the defendant must have imposed the terms in a way that affects their conscience.[14]  Consequently, parties who passively benefit from structural inequalities—such as lenders who routinely target low-income borrowers with obscure, high-interest terms—are shielded from liability, so long as their conduct falls short of morally culpable exploitation.

This culpability requirement is morally flawed. As Young argues, structural injustice often occurs without deliberate malice, yet still systematically disadvantages certain groups.[15] Requiring moral culpability misconceives the nature of exploitation in modern market economies, where disparities are often perpetuated by routine practices, not overt misconduct. Young observes that institutions in contemporary liberal democratic societies have the tendency to “reproduce sexual, racial, and class inequality by applying standards and rules in the same way to all who plausibly come under their purview.” The requirement of individual blame places a near-insurmountable evidentiary burden on claimants, who must expose not only their own disadvantage, but the defendant’s bad faith—a task made harder by power asymmetries in access to information, resources, and representation.

Equity has long intervened to prevent outcomes that offend conscience even absent fraud or deliberate wrongdoing. In this context, conscience does not require proof of moral blame but asks whether it would be unconscionable, given the circumstances, for the stronger party to retain the benefit of the bargain. On this view, equity can properly intervene even in cases of passive advantage-taking where structural disadvantage prevents meaningful consent, aligning with its traditional concern for fairness rather than punitive fault.

2.3 The “Oppressiveness” Threshold 

The third limb requires that the resulting bargain be not merely hard or improvident but “overreaching and oppressive.” In other words, the terms themselves must reach a level of substantive unfairness so severe that equity considers it unconscionable to enforce them. The refusal to set aside the mortgage in Portman Building Society v Dusangh illustrates the excessive severity of the “overreaching and oppressive” standard. Even where clear indicators of economic, linguistic, and informational disadvantage existed, and where the transaction risked depriving an elderly claimant of his home for the benefit of another party, the court required proof of terms so extreme as to “shock the conscience.”

Compared to other common law jurisdictions, the threshold for satisfying the oppressiveness element is unnaturally high. In Canada, for example, the doctrine of unconscionability originates from the same English equitable tradition but has evolved along a more flexible trajectory. In Uber Technologies Inc v Heller, the claimant, a driver for Uber, challenged an arbitration clause in the standard-form contract which required disputes to be resolved through arbitration in the Netherlands at significant personal cost.[16] The legal issue was whether the arbitration clause was unconscionable due to the imbalance of bargaining power between Uber and the driver. The Supreme Court of Canada found that there was no requirement that the transaction be grossly unfair in the substantive sense or that the stronger party intended to exploit the weaker party; the arbitration clause was unconscionable because of the structural inequality in bargaining power and the prohibitive cost of arbitration. As comparative jurisprudence from Canada illustrates, courts can and do intervene where bargaining processes themselves are tainted by structural inequality. English law’s continued attachment to the current model risks ignoring the complex ways in which disadvantage manifests in both substance and process.

2.4 The Result

The cumulative effect of these limitations is a doctrine that struggles to address the realities of modern contracting. Its requirements place a heavy burden on claimants while allowing defendants to benefit from structural inequalities, reflecting outdated assumptions about autonomy and responsibility. 

The next section proposes a redefinition of vulnerability that is attuned to intersectional realities, drawing on critical legal theory and foreign jurisprudence to formulate a revised test that better balances contractual freedom with substantive fairness.

1. Critically Analysing Foundations: Vulnerability and Autonomy

As detailed above, the classical assumption imagines that individuals enter contracts as fully rational, autonomous agents whose consent reflects their independent judgment, free from social, economic, or structural constraints. However, this view of the contracting subject—independent, self-sufficient, and context-free—is fundamentally a fiction. It rests on assumptions that have long been challenged by scholars across post-liberal legal theory, critical race theory, and behavioural law and economics.

This section argues that contract law must abandon the myth of autonomous equality and replace it with a more honest and empirically grounded account of vulnerability—one that is intersectional, structural, and relational. It is only by confronting the social realities that constrain legal agency that English law can begin to build a doctrine of unconscionable bargains that is both equitable and legitimate.

3.1 The Fiction of the Autonomous Contractor

The traditional justification for minimal judicial intervention is that freedom of contract reflects freedom of choice. The role of law, under this view, is to enforce the voluntary exchange of obligations between equal agents, not to police distributive outcomes or impute paternalistic judgments. But as Fineman has argued, this classical paradigm “reifies individual choice” and obscures the material and social conditions that shape how choices are made.[17] It is, at best, a formal abstraction and, at worst, a legitimising force for inequality: “Formal equality leaves undisturbed—and may even serve to validate—existing institutional arrangements that privilege some and disadvantage others.” Fineman points out the treatment of existing material, cultural, and social imbalances as the product of natural forces, beyond the ability of the law to rectify.

Fineman’s theory of the vulnerable subject offers a foundational critique: that vulnerability is not an anomaly, but a universal and constant feature of the human condition. While individuals may experience it differently depending on their social position, no one is truly invulnerable. In this view, autonomy is not a natural state but an achievement—one that depends on access to social and institutional supports. This reframing fundamentally undermines the liberal assumption that contractual capacity can be presumed without context. It demands that courts consider not simply whether a party consented, but whether that consent was meaningfully possible.

The doctrine of unconscionable bargains’ current framework does not accommodate this view. It continues to assess "serious disadvantage" as an individualised deviation from presumed normalcy, rather than as a reflection of accumulated structural harms.

3.2 The Blind Spot: Single-axis Concepts

Concepts like “poverty” and “ignorance,” drawn from Fry v Lane, and “lack of independent advice,” as emphasised in Cresswell v Potter, continue to define the traditional scope of vulnerability.[18] Even when modernised, these categories remain single-axis, meaning they focus on only one dimension of disadvantage at a time and fail to account for how multiple vulnerabilities can interact. They assess a claimant in isolation along a single factor—such as financial status, educational level, access to professional support, or psychological state—without a framework for understanding how these factors might be created, compounded, and weaponised by intersecting systems of social power.

For instance, a court might assess a claimant who is a recent immigrant with a university degree from her home country and conclude that she is not 'ignorant' in the sense understood in Cresswell v Potter.[19] This assessment, however, would miss the crucial point if her vulnerability in the transaction stemmed from a combination of factors: a language barrier preventing full comprehension of complex legal documents; cultural norms that encourage deference to authority figures (exploited by the other party); a precarious visa status that made her dependent on the other party and fearful of challenging them; and gendered expectations that placed her in a position of social inferiority. No single category captures this reality. Her disadvantage is not simply a lack of education or financial need; it is a unique, relational vulnerability created by the intersection of her national origin, gender, and immigration status within the specific context of the bargain. The existing doctrinal categories provide an incomplete vocabulary for describing this type of compounded disadvantage, forcing claimants to contort their experiences to fit into pre-existing, ill-suited boxes.

3.3 Autonomy-in-Context: Reclaiming Consent from Formalism

The principal concern of English law is that any significant expansion of the doctrine will threaten the certainty of contract and erode the sanctity of consent. Yet this objection rests on a shallow conception of both certainty and consent. Legal certainty does not require doctrinal immutability; it requires predictability, clarity, and principled reasoning. The unconscionable bargains doctrine, if reframed properly, could operate with clarity.

As for consent, Bagchi argues that in conditions of systemic inequality, the formal act of agreement cannot be assumed to reflect free will. She suggests that when the “background justice” of society is absent, courts should recognise an interpersonal right not to be exploited through that injustice.[20] This strengthens the argument for shifting from the autonomy-as-absolute understanding to an autonomy-in-context understanding: the latter being a framework that considers whether, in light of intersecting disadvantages, the weaker party could meaningfully negotiate or walk away from the bargain.

Similarly, Kronman’s distinction between legitimate and illegitimate “advantage-taking” provides a principled way to draw the line without collapsing into paternalism. [21] It preserves the value of freedom of contract while recognising that certain bargains, struck in the face of severe and intersecting disadvantages, cross a normative threshold where enforcement becomes indefensible. The proposed test in this paper builds on this approach, aiming to give courts a structured framework for identifying when consent is so compromised that intervention is justified.

3.4 What about the Classical Assumptions?

A common objection is that this autonomy-in-context approach might undermine the ideas of formal equality and autonomy in contract law. The vulnerability assessment could erode the foundational liberal premise of contract law: that parties are autonomous legal actors presumed to be free and equal. Yet this objection assumes that the current law is neutral, which it manifestly is not. As Hesselink and Tjon Soei Len write, neutrality is often a mask for privilege. A law that refuses to see race, class, or gender is not apolitical—it is complicit. [22] When private law universalises the experiences of the privileged while rendering the lives of the marginalised illegible, it does not simply fail to correct injustice, but “reproduces and legitimates” it. Hesselink and Tjon Soei Len point out that contract law is blind towards forms of oppression and marginalisation that are structurally present in our society, thus presenting itself as neutral, but in fact corresponds to, amongst others, gender and racially dominant and privileged experiences. Recognising intersectional vulnerability in contract law does not abandon autonomy or equality, but rather reclaims them from a false neutrality that has long served to entrench structural privilege.

Another objection is that English contract law is concerned with corrective justice, not distributive justice. On this view, contractual remedies respond to the wrongful conduct of one party toward another, rather than seeking to rectify broader social or economic inequalities. If the stronger party is to lose the benefit of a bargain freely entered into, the objection goes, there must be some element of responsibility attached to their behaviour. However, this “responsibility” requirement need not be understood in the narrow sense of active fault. Equity has long recognised forms of responsibility that arise not from active wrongdoing but from circumstances making it unconscionable to retain a benefit. Fry v Lane and Cresswell v Potter, for instance, imposed implied duties on stronger parties where significant informational or bargaining asymmetries existed, even absent fraudulent intent.[23] This reflects a principle of equitable restraint: those who stand to benefit from structurally imbalanced transactions must ensure that consent is meaningful rather than merely formal.

This duty does not amount to distributive justice. It does not require courts to equalise wealth or rewrite bargains simply because one party is poorer or less educated. Rather, recognises a soft moral duty not to exploit or passively benefit from another’s structural vulnerability.

Under such circumstances, the stronger party’s responsibility or soft moral duty manifests in two key obligations: first, to refrain from contracting when it is or ought to be clear that the terms impose an unfair burden due to the other party’s evident disadvantage; and second, to ensure procedural safeguards, such as encouraging independent legal advice, that help level the playing field. As Lord Brightman observed in Hart v O’Connor, equity’s concern has never been limited to active deception; it also captures the “unconscientious use of power” that arises when a party accepts a benefit in circumstances that should alert them to the impropriety of the transaction.[24] In this light, responsibility is not tied strictly to intentional victimisation—it includes knowingly benefiting from inequality, or turning a blind eye to it. The doctrine should, therefore, recognise this more subtle and structural form of advantage-taking.

Of course, there must be limits. The stronger party cannot be expected to divine hidden vulnerabilities. However, as an analysis of Amadio will demonstrate below, equity may impose a burden where objective factors such as language barriers, age, or socioeconomic position would alert a reasonable person to the other party’s compromised position. It should put the stronger party on notice.[25] This “notice threshold” strikes a balance: it avoids strict liability, but affirms that constructive awareness of vulnerability is sufficient to activate a duty to pause, inquire, or abstain. The threshold does not require actual knowledge of the claimant’s circumstances, but asks whether a reasonable party in the stronger position ought to have recognised signs of disadvantage.

This burden is further justified when viewed through an intersectional lens. The stronger party may not be directly responsible for systemic inequality, but if they benefit from it by enforcing a contract that disadvantages someone already structurally constrained, they become morally implicated. Intersectional theory holds that indirect complicity in injustice gives rise to a moral duty—not necessarily to rectify the system, but to refrain from reinforcing or benefiting from its consequences. In this sense, the duty is not one of distributive justice per se, but one of non-participation in institutional harm.

English contract law already accommodates a limited concern for substantive fairness, often through the back door.[26] For instance, courts can assess the enforceability of a contract based on whether meaningful alternatives were available.[27] But assessing what counts as a “reasonable alternative” requires contextual insight that recognises how social, economic, and structural constraints interact. As Kronman argues, it is “unduly artificial” to treat a contract as divorced from its broader societal context; any legitimate account of bargaining must consider its distributional implications.[28] This does not mean abandoning consent, but rather acknowledging that consent alone is not always morally sufficient. Even in classical liberal frameworks, certain market regulations such as credit controls, minimum wage laws, or mandatory consumer protections reflect the law’s willingness to limit private bargains for the sake of social welfare. The reform proposed here builds on existing legal mechanisms that limit contracts in the interests of fairness, proposing careful judicial consideration of structural inequalities where they significantly restrict meaningful choice.

What is needed is guidance on how to assess vulnerability in a non-arbitrary way. The proposed reform in this paper does just that: it sets out a structured test, informed by comparative precedent and theoretical clarity, that retains legal boundaries while acknowledging social reality.

1. Learning from Australia: A Positive Duty to Mitigate Vulnerability

A comparative analysis reveals that English courts' narrow and individualistic interpretation of unconscionable bargains is not an inevitable feature of common law—it is a choice. Australian jurisprudence, by contrast, has developed a more expansive doctrine that engages directly with structural and contextual vulnerability.[29]

At the core of the Australian approach is a reframing of the defendant’s obligation. Rather than merely refraining from exploiting disadvantage, courts may impose a positive duty to ensure that a claimant is not agreeing to an unfair bargain when their vulnerability is evident. This principle is exemplified in Commercial Bank of Australia Ltd v Amadio, where the High Court set aside a contract because the elderly claimants were under a “special disadvantage,” and the bank failed to take reasonable steps to ensure the transaction was fair.[30] As Deane J noted, the doctrine is not limited to intentional exploitation, but extends to cases where assent was procured under circumstances that render it prima facie unfair for the stronger party to retain the benefit.

Other cases reinforce the breadth of the Australian doctrine. In Louth v Diprose, the Court recognised unconscionable conduct arising from the defendant’s knowledge of the claimant’s emotional vulnerability, again without requiring intentional exploitation.[31] Similarly, Blomley v Ryan demonstrates that equity may intervene where a party takes advantage of a disadvantage, even where the stronger party’s conduct is only negligently aware of the claimant’s predicament.[32]

However, the scope of the positive duty is not unbounded. Kakavas v Crown Melbourne Ltd illustrates the limits of Australian unconscionability: the High Court emphasised that predatory intent or unconscionable advantage may still be necessary in certain commercial contexts, cautioning against overextension of equitable intervention.[33] These cases highlight that the Australian approach is neither uniform nor uncontroversial. Regardless, as Liew and Yu argue, even after the Kakavas development, the Australian unconscionable bargains doctrine continues to impose a positive duty on the stronger party to prevent unfair outcomes for vulnerable claimants, reflecting a more interventionist and substantive approach than English law.[34]

In sum, the Australian doctrine illustrates that equity can operate with a more context-sensitive and proactive approach, mitigating structural vulnerability while maintaining principled limits. This comparative insight supports the argument that English law could viably recalibrate its unconscionable bargains doctrine. The following section builds on these lessons to propose a revised doctrinal test, designed to balance fairness, clarity, and the realities of human vulnerability.

1. Proposal: Reframing the Test

The preceding sections have demonstrated that the current doctrine of unconscionable bargains in English law is doctrinally incoherent, theoretically outdated, and structurally exclusionary. It demands too much of claimants—requiring them to pathologise their own disadvantage—and too little of defendants, who are insulated from liability unless found to have acted in a morally reprehensible manner. The law's unwillingness to recognise structural coercion and intersectional disadvantage leaves it out of step with modern social realities.

Ensuring that doctrines reflect the actual conditions under which people contract is crucial to achieving both fairness and coherence in the law. In reality, contracts are rarely negotiated by fully autonomous actors; they are shaped by linguistic, cultural, socioeconomic, and structural factors that influence the options available to each party. By aligning legal doctrine with lived experience, the law can better protect vulnerable parties.

This section sets out a revised doctrinal test for unconscionable bargains. The aim is not to loosen the requirements of the doctrine indiscriminately, nor to endorse an unbounded principle of unconscionability as warned against by Rickett.[35] Instead, the proposal redefines the second and third limbs of the classical test in a way that embeds intersectional vulnerability, removes the unnecessary culpability requirement, and introduces a structured, judge-led assessment of bargaining power inequality. The court’s assessment of vulnerability is also a means of interrogating the institutional practices that produce the vulnerability in the first place.

5.1 The Reformed Three-Limbed Test

Under the proposed framework, a contract should be presumed voidable on the grounds of unconscionable bargain where the claimant establishes the following three elements:

1. Oppressive or substantively disadvantageous terms.

The contract or transaction must impose a significant imbalance between the parties’ obligations and benefits. “Disproportionate” in this context refers to terms that are grossly one-sided, such that the claimant bears an exceptional burden relative to the consideration received, or where the obligations deviate markedly from market norms or industry standards. This assessment is both quantitative and qualitative, considering not only the relative value of the benefits but also the claimant’s capacity, knowledge, and access to alternatives. This limb is retained from the classical test and ensures that the doctrine continues to operate as a safeguard against exceptional injustice, rather than a mechanism for renegotiating merely unfavourable contracts.

1. Intersectional vulnerability of the claimant.

The claimant must have been in a position of vulnerability at the time of contracting. However, vulnerability is no longer limited to narrow categories such as “poverty and ignorance” or mental incapacity. Instead, courts should adopt an intersectional lens that recognises how overlapping structures of disadvantage—such as race, gender, disability, immigration status, caregiving obligations, or economic precarity—can compound to materially impair meaningful consent. 

Applying an intersectional lens would guide a court through a more nuanced inquiry. For any given claimant, the court would be prompted to consider:

1. Identification of Salient Identities: What are the claimant's multiple social identities that are relevant in the transactional context? This could include their race, ethnicity, gender, class, age, disability, sexual orientation, immigration status, or language proficiency.
2. Analysis of Interlocking Systems: How do the broader systems of power, privilege, and oppression associated with these identities operate and interact? For example, how might systemic racism intersect with gendered power dynamics or the precarity associated with a particular immigration status?
3. Assessment of Compounded Effect: Did these intersecting factors combine to create a unique, compounded, or heightened form of disadvantage for the claimant in this specific bargain? The focus is on how the combination of factors may have impaired their ability to understand the transaction, negotiate its terms, or freely consent to the agreement.

The threshold is not whether the claimant lacked all judgment or autonomy, but whether, in context, they were substantially constrained in their ability to understand, evaluate, or walk away from the bargain.

Adopting this model would expand the types of permissible evidence relevant to the 'vulnerability' limb. A claimant would not be limited to proving poverty through financial records or ignorance through educational qualifications. Instead, parties could adduce evidence that sheds light on the full context of the transaction. This could include: evidence on cultural norms that may influence negotiation styles or create deference to authority, particularly relevant in cases involving parties from different cultural backgrounds; evidence of a claimant's socioeconomic position, including income or employment precarity, and how these factors shaped their bargaining power; evidence of a claimant's precarious immigration status and how this created a state of dependency or fear that was known to the other party; evidence of language barriers that went beyond mere fluency and impacted the comprehension of complex legal or financial concepts; psychological evidence on the impact of past trauma, abuse, or experiences of systemic discrimination on an individual's decision-making capacity and risk assessment; sociological evidence regarding the specific disadvantages faced by individuals at the intersection of particular identity markers within the relevant community or industry. This list of illustrative evidence is not intended to elevate the claimant’s burden of proof; courts would consider any credible material demonstrating vulnerability, and the inclusion of expert or documentary evidence would be discretionary and context-dependent. A more expansive approach to evidence is consistent with equity's fact-sensitive jurisdiction.

Some may question how well-equipped judges are to assess intersecting forms of vulnerability. While this is a valid concern, judges are regularly called upon to make complex evaluative judgments, especially in equity, such as assessing undue influence, fiduciary obligations, or estoppel claims. The proposed guidelines for the second limb is structured and evidence-driven: judges evaluate the material impact of identified vulnerabilities on meaningful consent based on expert evidence, documentary records, and contextual indicators.

It must be recognised that applying an intersectional vulnerability lens introduces a degree of uncertainty: outcomes will inevitably depend on the specific combination of factors and evidence presented in each case. However, on balance, it is a necessary and justified trade-off. Without allowing courts to consider the full context of structural disadvantage, the law risks leaving materially unfair bargains unremedied.

1. Knowledge (actual or constructive) and failure to mitigate

The defendant must have had actual or constructive knowledge of the claimant’s vulnerability and failed to take reasonable steps to ensure the transaction was fair, still proceeding with the transaction. Constructive knowledge includes wilful blindness or a failure to inquire in circumstances where the disadvantage was sufficiently evident to an honest and reasonable person. Once this is established, the burden shifts to the defendant to prove that the contract was “fair, just, and reasonable” (as historically applied since Fry v Lane).[36]

This replaces the outdated requirement of morally culpable exploitation. As argued in Section III, structural injustice often operates without intentional wrongdoing. If wanting to contract with the weaker party, the stronger party’s duty is not simply to not exploit, but to take affirmative steps where appropriate to mitigate the effects of evident inequality. This draws from the Australian case law and reflects a more modern understanding of “conscience” in contract law.

5.2 The Positive Duties of the Stronger Party

This doctrinal reform implies a positive obligation on the stronger party. Where vulnerability is sufficiently evident, the party in a position of power must make reasonable efforts to level the playing field. This could include: encouraging or facilitating independent legal advice; ensuring clear communication and explanation of key terms or even flagging of potential consequences where necessary; allowing time for consideration and consultation; or, in some cases, declining to contract altogether.

The scope of this duty is not limitless. It is a standard of reasonableness, assessed contextually. In commercial or institutional settings, where parties frequently deal with consumers or claimants in structurally disadvantaged positions, more will be expected. Where both parties are sophisticated and legally advised, or where no indicators of vulnerability are present, the duty will not arise. This avoids overreach and maintains the principle that equity intervenes only where injustice is exceptional.

It may be objected that imposing a positive duty creates uncertainty and imposes excessive burdens on contracting parties. Would this not deter legitimate commercial activity or expose businesses to unpredictable litigation risk? These concerns are serious. However, two points may be made in response. First, the proposed duty requires only reasonable steps where vulnerability is sufficiently evident; hidden vulnerabilities will not invalidate contracts. Second, commercial actors can adapt by adopting simple, low-cost safeguards.

In light of this reframed positive duty, commercial parties will likely be encouraged to adopt several precautionary measures to protect themselves from potential claims. For example, they may provide clearer and more transparent communication—presenting information in plain language, avoiding unnecessarily complex legal or financial jargon, and flagging key consequences—to ensure all parties understand the terms and implications of the agreement. They may encourage vulnerable parties receive independent advice before entering contracts, demonstrating that the stronger party took reasonable steps to ensure fairness. Stronger commercial parties may also adhere more closely to industry codes of conduct or avoid below-market-standard offerings, to signal a commitment to fair dealings. These practices not only protect parties legally but also encourage more ethical and transparent commercial behaviour overall.

5.3 Contextualising the Doctrine

This revised test retains coherence with other equitable doctrines. It is important to recognise that the doctrine of unconscionable bargains has historically functioned as a residual safety net. The unconscionable bargains doctrine is rarely the primary legal basis for setting aside a contract; rather, it emerges in those hard cases where no other doctrine—such as misrepresentation, undue influence, or duress—can capture the particular injustice of the transaction. The proposed reforms expand the scope of factors considered, but the doctrine would remain applicable only in circumstances where enforcement would be unconscionable despite the absence of actionable misrepresentation, undue influence, or duress. It catches those cases of structural vulnerability and complex disadvantage that slip through the gaps of more narrowly defined doctrines.

Viewed in this light, it is both appropriate and desirable that the doctrine should be more flexible, context-sensitive, and attuned to the realities of systemic inequality. Rigid thresholds and moral culpability requirements are out of step with the safety-net role the doctrine is meant to perform. If unconscionable bargain doctrine is the only remaining route to equitable relief in certain cases, then it must be capable of responding to structural disadvantage and intersectional harm, even where there is no intentional exploitation or procedural defect in the classical sense.

1. Conclusion

The doctrine of unconscionable bargains has long occupied a peripheral yet symbolically important place in English contract law. It offers a mechanism of last resort for addressing contractual injustice, but its current formulation reflects a narrow and outdated view of vulnerability. By framing disadvantage as individual anomaly and requiring morally culpable exploitation by the stronger party, the doctrine fails to account for the structural and intersectional realities that shape how consent is produced in unequal societies.

This paper has argued for a reframing of the doctrine that recognises intersectional vulnerability, lowers the threshold for defendant responsibility to constructive knowledge, and introduces a more structured approach to assessing both substantive and procedural fairness. The proposal draws on comparative insights from Australian jurisprudence and is grounded in theoretical developments across critical legal theory, feminist thought, and behavioural law and economics.

Far from undermining legal certainty or autonomy, the revised approach reclaims both. It recognises that true autonomy requires not the absence of interference, but the presence of meaningful choice. It ensures that legal doctrines reflect the actual conditions under which people contract, rather than a fiction of abstract equality.

[1] Alec Lobb (Garages) Ltd v Total Oil (GB) Ltd [1985] 1 WLR 173 (Ch)

[2] Kimberle Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' (1989) U Chi Legal F 139

[3] Martha Albertson Fineman, 'The Vulnerable Subject: Anchoring Equality in the Human Condition' (2008) 20 Yale J L & Feminism 1

[4] P.S. Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press 1979); Stephen A. Smith, Contract Theory (Oxford University Press 2004)

[5] Alec Lobb (Garages) Ltd v Total Oil (GB) Ltd (n 1)

[6] Fry v Lane (1888) 40 Ch D 312

[7] Cresswell v Potter [1978] 1 WLR 255

[8] Backhouse v Backhouse [1978] 1 WLR 243

[9] Fineman (n 3)

[10] Crenshaw (n 2)

[11] Sabine Tsuruda, 'Race, Unconscionability, and Contractual Equality' (forthcoming) Harvard Civil Rights-Civil Liberties Law Review

[12] Patricia J Williams, The Alchemy of Race and Rights (1991)

[13] Fry v Lane (n 6); Cresswell v Potter (n 7)

[14] Multiservice Bookbinding Ltd v Marden [1979] Ch 84

[15] Iris Marion Young, 'Structural Injustice and the Politics of Difference' in Gary Craig, Tania Burchardt and David Gordon (eds), Social Justice and Public Policy: Seeking Fairness in Diverse Societies (2008)

[16] Uber Technologies Inc v Heller 2020 SCC 16, [2020] 2 SCR 118

[17] Fineman (n 3)

[18] Fry v Lane (n 6); Cresswell v Potter (n 7)

[19] Cresswell v Potter (n 7)

[20] A Bagchi, ‘Distributive Injustice and Private Law’ (2008) 60 Hastings Law Journal 105, 107–08

[21] Kronman, ‘Contract Law and Distributive Justice’ (1980) 89 Yale Law Journal 472; ‘Wealth Maximisation as a Normative Principle’ (1980) 9 Journal of Legal Studies 227

[22] Martijn W Hesselink and Lyn K L Tjon Soei Len, 'European private law & intersectionality: three strategies' (2025) 4(2) European Law Open 201-222

[23] Fry v Lane (n 6); Cresswell v Potter (n 7)

[24] Hart v O'Connor [1985] AC 1000, 1000 (Lord Brightman)

[25] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, [1983] HCA 14

[26] Kevin E Davis and Mariana Pargendler, ‘Contract Law and Inequality’ (2022) 107 Iowa L Rev

[27] Pao On v Lau Yiu Long [1980] AC 614

[28] Kronman (n 22)

[29] Ying Khai Liew and Debbie Yu, ‘The Unconscionable Bargains Doctrine in England and Australia: Cousins or Siblings?’ (2020, forthcoming) Melbourne University Law Review

[30] Commercial Bank of Australia Ltd v Amadio (n 25)

[31] Louth v Diprose (1992) 175 CLR 621

[32] Blomley v Ryan (1956) 99 CLR 362

[33] Kakavas v Crown Melbourne Ltd [2013] HCA 25

[34] Liew and Yu (n 30)

[35] C Rickett, ‘Unconscionability and Commercial Law’ (2005) 24 University of Queensland Law Journal 73, 75–81

[36] Fry v Lane (n 6)