Unconscionability, Undue Influence and Umbrellas: The 'Unfairness' Doctrines in Singapore Contract Law after Bom V Bok

28 Pages Posted: 21 Jul 2020

See all articles by Burton Ong

Burton Ong

National University of Singapore (NUS) - Faculty of Law

Date Written: March 2020

Abstract

This article explores the impact of the Singapore Court of Appeal’s landmark decision in BOM v BOK, where a full panel of five Supreme Court judges re-examined the status and scope of several closely-related doctrines of “unfairness” recognised under Singapore’s contract law. The apex court formally articulated a three-pronged test for an unconscionability doctrine, taking pains to emphasise that Singapore should only recognise a “narrow doctrine” of unconscionability, while dismissing the possibility of an “umbrella doctrine” that merges the doctrines of duress, undue influence and unconscionability despite the court’s view that there were “close linkages” between them. The breadth of the obiter dicta found in the decision, along with its 22-paragraph coda, agitated the doctrinal waters surrounding these vitiating factors and triggered a spirited riposte from a contributor to the March 2019 edition of this journal in which a detailed critique of the decision was canvassed. This article seeks to do three things. Firstly, it explains why the Court of Appeal’s decision to adopt a narrow formulation of the doctrine of unconscionability for Singapore was the sensible thing to do. Secondly, it examines some of the conceptual difficulties associated with the equivocal statements made by the Court of Appeal in relation to the doctrinal overlaps between these adjacent vitiating factors. Thirdly, it proposes an organisational framework, consistent with BOM v BOK’s rejection of an all-encompassing umbrella doctrine of unconscionability, for the Singapore courts to visualise the relationship between these vitiating factors so that future judicial developments of these doctrines bring greater clarity and coherence to this dynamic frontier of contract law.

Suggested Citation

Ong, Burton, Unconscionability, Undue Influence and Umbrellas: The 'Unfairness' Doctrines in Singapore Contract Law after Bom V Bok (March 2020). Singapore Journal of Legal Studies, Mar. 2020, pp 295-322, Available at SSRN: https://ssrn.com/abstract=3654023

Burton Ong (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

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