(Part 1 here and Part 2 here.)
If by the 1200s the medieval scholastic synthesis to combined Christian and Classical virtues (fidelity and fairness as well as commutative justice) with Roman law, what happened next? In my chapter Unconscionability: Reciprocity and Justice (download here), I go on to make two points. First, jurists took a dim view of lawyers' efforts to draft around the rule of unconscionability (permitting avoidance of contracts for sale for more than double or for less than half of market value). And second, the civil law on this issue did not change notwithstanding the Reformation.
Addressing the first point requires recalling another virtue: generosity. Being generous does not require being just; after all, a gift is imbalanced by its very nature. Thus armed, some cagey lawyers suggested that the "fine print" of a contract could provide that any portion of the price that exceeded the two-times-market-value standard of unconscionability was really a gift. Not so fast, the jurists concluded: “in a sale there is no reason to believe that the parties intend to make a donation. The intention of the contracting parties is directed towards obtaining a mutually advantageous sale contract, there is nothing they want less than to make a gift.” Nice try but still a loser of an argument.
While the Reformation was a big deal on many fronts, it was irrelevant to the doctrine of unconscionability. Such Reformed theological stalwarts as John Calvin and the drafters of the Westminster Larger Catechism agreed that a Christian's moral conscience required justice in contracts. And by justice they meant rough equality in exchange. Such thoroughly Protestant jurists like Hugo Grotius and Samuel Pufendorf agreed from the law side of the fence.
Yet there remains the nagging question of England and its common law. There was no place for the defense of unconscionability in the common law's writ system, was there? We shall see..
If by the 1200s the medieval scholastic synthesis to combined Christian and Classical virtues (fidelity and fairness as well as commutative justice) with Roman law, what happened next? In my chapter Unconscionability: Reciprocity and Justice (download here), I go on to make two points. First, jurists took a dim view of lawyers' efforts to draft around the rule of unconscionability (permitting avoidance of contracts for sale for more than double or for less than half of market value). And second, the civil law on this issue did not change notwithstanding the Reformation.
Addressing the first point requires recalling another virtue: generosity. Being generous does not require being just; after all, a gift is imbalanced by its very nature. Thus armed, some cagey lawyers suggested that the "fine print" of a contract could provide that any portion of the price that exceeded the two-times-market-value standard of unconscionability was really a gift. Not so fast, the jurists concluded: “in a sale there is no reason to believe that the parties intend to make a donation. The intention of the contracting parties is directed towards obtaining a mutually advantageous sale contract, there is nothing they want less than to make a gift.” Nice try but still a loser of an argument.
While the Reformation was a big deal on many fronts, it was irrelevant to the doctrine of unconscionability. Such Reformed theological stalwarts as John Calvin and the drafters of the Westminster Larger Catechism agreed that a Christian's moral conscience required justice in contracts. And by justice they meant rough equality in exchange. Such thoroughly Protestant jurists like Hugo Grotius and Samuel Pufendorf agreed from the law side of the fence.
Yet there remains the nagging question of England and its common law. There was no place for the defense of unconscionability in the common law's writ system, was there? We shall see..
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