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  • Theoretical justifications for restraining “unconscionable” demands under on-demand guarantees

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    80085_1.pdf (148.2Kb)
    Author(s)
    Rodrigo, Thanuja
    Griffith University Author(s)
    Rodrigo, Thanuja K.
    Year published
    2012
    Metadata
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    Abstract
    Whilst English courts have adopted "fraud" on the part of the beneficiary calling under the guarantee as the sole ground upon which the enforcement of on-demand guarantees can be restrained, the Australian courts have adopted "unconscionability" as a separate ground from that of "fraud" for restraining the enforcement of such guarantees. Drawing upon the doctrine of "freedom of contract" and principles of "cost-benefit" in economics this article provides theoretical justifications for the Australian court's divergence from the English law principles in matters restraining demands under on-demand guarantees.Whilst English courts have adopted "fraud" on the part of the beneficiary calling under the guarantee as the sole ground upon which the enforcement of on-demand guarantees can be restrained, the Australian courts have adopted "unconscionability" as a separate ground from that of "fraud" for restraining the enforcement of such guarantees. Drawing upon the doctrine of "freedom of contract" and principles of "cost-benefit" in economics this article provides theoretical justifications for the Australian court's divergence from the English law principles in matters restraining demands under on-demand guarantees.
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    Journal Title
    Australian Business Law Review
    Volume
    40
    Issue
    5
    Publisher URI
    http://sites.thomsonreuters.com.au/journals/2012/02/03/australian-business-law-review-update-february-2012/
    Copyright Statement
    © 2012 Thomson Legal & Regulatory Limited. The attached file is reproduced here in accordance with the copyright policy of the publisher. Please refer to the journal's website for access to the definitive, published version.
    Subject
    International Trade Law
    Accounting, Auditing and Accountability
    Law
    Publication URI
    http://hdl.handle.net/10072/48357
    Collection
    • Journal articles

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