Types of Unfairness:
Substantive Fairness:
Substantive fairness addresses the content of the bargain: whether it was a fair / good agreement for both parties.
The law generally is apprehensive to invalidate terms or contracts that have issues of substantive unfairness. EG: consideration does not have to be adequate.
Examples:
Unfair terms
Procedural Fairness:
Procedural fairness addresses the process of bargaining: whether there could have been negotiation.
Without proper freedom of choice, freedom of contract cannot properly be achieved. It is for this reason that the law attempts to correct this.
Examples:
Misinformation / Misrepresentations.
Unfair pressure to enter into the contract.
Rationale:
Consent:
Consent that was given was defective. The innocent party was forced, so it is not freely given. The law only considers consent to be defective when the other party is responsible for making the consent defective.
Wrongdoing:
It is morally wrong to allow parties to profit from their wrongs. However, the law also holds people who do not necessarily do anything wrong.
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