Autonomy and Paternalism from a Common Law Perspective: Setting Aside Disadvantageous Transactions

Abstract

English contract law has, by a variety of methods, set aside or refused to enforce transactions that are extremely disadvantageous to one of the parties. The inclusion in the Draft Common Frame of Reference of a general power to this effect suggests that many European systems have often also reached similar results. These cases might, from one perspective, be regarded as instances of paternalism and infringements of autonomy, but other considerations have been relevant, including public policy, avoidance of unjust enrichment and whether the party seeking enforcement has had a legitimate interest in doing so.