Unconscionability Part 1

Over a few posts I'll summarize the main arguments I make in a book chapter you can read for yourself by downloading it here. Cribbing from my abstract:

Written at an introductory level, this chapter aims to demonstrate that the contract law doctrine of unconscionability finds its warrant in the virtues of reciprocity and justice. These virtues came to be part of the Western tradition of law in the eleventh century as scholastic theologians and jurists wove together strands of biblical revelation, Roman law, and Aristotelian commutative justice. The culmination of this project--the civil law doctrine of laesio enormis (rough equality in exchange)--remained unaffected by the Protestant Reformation. Because justice in exchange was a matter of conscience as well as law, it played a role even in the common law tradition. The gradual subjectivization of conscience and the displacement of justice in contract law by notions of utility and autonomy through the course of the nineteenth century lead to the disappearance of unconscionability in the common law. Unconscionability was resuscitated in Article 2 of the Uniform Commercial Code but its application has proved uncertain and unpredictable. A return to a virtue-centered understanding of unconscionably--rough equality in exchange--would make unconscionability more certain and predictable.

In typical Protestant fashion, Phase 1 of my argument that unconscionability has identifiable content, that is, it was (and is, or at least should be, more than "the length of the chancellor's foot") begins with Torah. Here we immediately run into a problem: there is no contract law in Torah. As I explained in Principled Pluralism and Contract Remedies (download here or here), "a search of the Hebrew or Christian Scriptures provides little in the way of a specific divine warrant for a legal remedy for breach of contract." (Emphasis added.) Those same texts, however, provide a principled basis for contract law (and remedies) as a means of implementing the grant of human dominion over the earth with the goal of bringing the entire creation into the Sabbath rest enjoyed by God.

Granting the lack of a biblical contract law, however, doesn't mean that Torah has nothing relevant to unconscionability.  As I elaborate at length in the chapter, "Torah presents two fundamental principles that are crucial to contract law: the virtues of fidelity and fairness." Fidelity, or reciprocity, describes the promisor-oriented virtue of promise-keeping (fides est servanda) while fairness (justice) recognizes the reciprocal duty of a promisee not use misuse power to the disadvantage of another. In other words, "just as Torah emphasizes the virtue of fidelity, it also prohibits various vices that could arise in the practice of exchange. . . An exchange of substantially unequal values could fall within the scope of oppression." 

When all is done, the biblical text opens the door to judicially-recognized limits on unfair bargains but doesn't provide a specific answer to the question of when mere inequality reaches the level of oppression. We will see the answer to the question of how the Western moral and legal tradition came to know when "how unfair is too unfair?" in a future post.