Should the Courts consider whether mortgage terms are “unfair”, even if not asked to do so?

04-12-2017

As mentioned in Resolving the Mortgage Arrears Crisis Vol 1/2017, Barrett J in the High Court delivered his well-publicised judgment in AIB v Counihan on 21 December 2016.  In that judgment, he observed that the Court has a general obligation to establish if any terms in a mortgage contract are unfair within the meaning of the Unfair Contract Terms Directive (as implemented in Ireland by the Unfair Contract Terms Regulations), even if the Court has not been specifically asked to look at the mortgage contract in that context.

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