The question of what “fairness” is is a question that is often heard, but the correct understanding is complicated and even abstract, especially when it is linked to various complex interests (Eisenberg, 2018). The issue of contract fairness continues to be debated by academics and legal practitioners. Along with technological developments, theories and studies regarding the values of fairness in contracts continue to develop (Gardner, 2021). This condition is in line with the increasing importance of strengthening consumer protection, especially in adhesion contracts (Loos, 2016; McCall, 2020; Wiwoho et al, 2023). Most recently, the case of Heller vs. Uber in 2020, which was decided by the Supreme Court of Canada (SCC), could be a representation of the meaning of contractual fairness (Harvard Law Review, 2021a). The Heller vs. Uber case became a turning point for judges to interpret the terms and conditions in electronic contracts (Gardner, 2021). The clause in the electronic contract between Heller and Uber stating that the agreement between Heller (driver partner) and Uber is exclusively governed by Dutch law and the clause in the contract stating that any disputes must be resolved by arbitration in the Netherlands (arbitration clause) have been annulled by the SCC. The SCC stated that the clause was unconscionable for Heller (Harvard Law Review, 2021a). The panel of judges raised the issue of accessibility which justified the deviation from the general rules of arbitration. The court determined that the settlement of the case could not be resolved through arbitration due to consideration of the lack of access, both in terms of distance, costs and Heller’s capabilities. The judge used the unconscion

The Nature of Fairness in Contracts: An Electronic Contract Perspective

Since Aristotle’s thinking, philosophers have recognized that exchange transactions are necessary for the development of society, but philosophers have also argued that fairness requires that the things exchanged have the same value (McCall, 2020). Aristotle stated: “But in dealings of exchange justice is such that it includes reciprocation according to proportionality but not according to equality”. It seems clear that exchanging a pair of shoes for a house would be an unfair exchange. The shoe owner will gain a large increase in wealth in exchange for his pair of shoes. By proportionality, Aristotle means that proportional equality of values must be maintained (Kharisma, 2024). Aristotle did not provide a complete explanation for the practical calculation of value and for correcting unfair exchanges. However, Aristotle suggested that one of the functions of law (in the form of fairness imposed by judges) is to correct the redistribution of wealth caused by unfair exchanges, whether voluntary or involuntary (McCall, 2020). Aristotle’s idea of fairness is the basis for the doctrine of unconscionability (McCall, 2020). Judges utilize the concept of unconscionability as a tool to enforce agreements and protect against unfairness (White et al, 2022). Therefore, the aim of the unconscionability doctrine is to prevent unfair contract clauses (Gamarello, 2015). The meaning of the doctrine of unconscionability is that an unfair contract cannot be implemented (Trakic, 2016). The concept of unconscionability restricts the parties’ right to freedom of contract to prevent the abuse of unrestricted authority and unequal bargaining power. The unconscionability doctrine uses two indicators to test whether the contract is fair or not.

Unfairness of Electronic Contracts

Procedurally Unfair Electronic Contracts In contract law, it is an axiom that for a contract to have binding power, there needs to be a meeting of minds as a form of consensus between both parties that they want to enter a contractual relationship with each other with certain conditions. This reflects the principle of consensualism and the principle of freedom of contract, although sometimes agreement can be implied, for example through the actions of the parties and not through words, this agreement is a fundamental requirement in forming a contract (Eisenberg, 2018). In electronic contracts it is difficult to identify when the user (consumer) implicitly agrees to enter a contractual relationship with a digital service provider (electronic system operator) with certain conditions, which is one of the disadvantages of the indirect nature of online communication between the parties (Permana, 2021; Kharisma & Diakaza, 2024). In contrast, it would be easier for digital service providers to provide services to users, without obtaining the user’s explicit consent to such actions. This is one of the reasons for the introduction of specific disclosure obligations in relation to long-distance contracts for digital service providers, which will cause consumers to explicitly acknowledge and agree to orders with an obligation to pay. However, this provision will not protect consumers in situations where digital services are provided free of charge, because currently the regulations governing electronic contracts do not recognize other means of payment, for example payment with personal data. One form of new electronic contract is a browsewraps agreement. In this form, it does not require users to express consensus

Legal Construction of the Normative Doctrine of Unconscionability in Electronic Contracts in Indonesia

Article 1171 of the New French Civil Code, which has been recently revised, can be an example of the normative doctrine of unconscionability in the civil law system. The article aims to create balance and create fair contracts in business contracts. Article 1171 of the New French Civil Code reads as follows: Dans un contract d’adhésion, toute clause non-negotiable, determinable à l’avance par l’une des parties, qui cree un déséquilibre significant entre les droits et obligations des parties au contract est réputée non écrite (In a contract of adhesion, any non-negotiable clause, determined in advance by one of the parties, which creates a significant imbalance between the rights and obligations of the parties in the contract is considered unwritten). The norm empowers the judge to delete any additional clause in a standard contract

Author: Agus Yudha Hernoko

Kharisma, D. B., Hernoko, A. Y., Thalib, P., & Rana, D. S. (2025). The nature of fairness in contracts: An electronic contract perspective. Jurnal Hukum Novelty, 16(1), 85–100. https://doi.org/10.26555/jhn.v16i1.29650