(D) EXAMPLES OF INEQUALITY

There are a number of well recognized categories of special disability or disadvantage. The potential for abuse in the first two categories, involving transactions with the poor and ignorant and with expectant heirs, might be so great that unconscionability on the part of the defendant might even be presumed after it has been shown that there is significant inequality in the substance of the transaction.[1] [2] [3] If so, once the claimant has established the special disability or disadvantage, the burden will be on the defendant to show that the transaction was fair, just, and reasonable.

  • [1] See Alec Lobb (Garages) Ltd v Total Oil Great Britain Ltd [1985] 1 WLR 173, 182 (Dillon LJ).
  • [2] (1888) 40 Ch D 312. See also Evans v Llewllin (1787) 1 Cox 333, 29 Ex 1191.
  • [3] [1978] 1 WLR 255n. See also Credit Lyonnais Bank Nederland NV v Burch [1997] 1AllER144; PortmanBuilding Society v Dusangh [2000] EWCA Civ 142, [2000] 2 All ER (Comm.) 221, where being old, illiterate,and with a low income was characterized as the modern equivalent of ‘poor and ignorant’; Chagos Islanders vAttorney-General [2003] EWHC 2222, [580] (Ouseley J).
 
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