Unconscionability Part 5

(Part 1, Part 2, Part 3, and Part 4.)

In the course of less than a century--the nineteenth--unconscionability died in the United States. Notwithstanding its venerable history and theological grounding, unconscionability fell prey to an increasingly utilitarian, market-oriented frame of reference that overwhelmed the tenuous connection between virtue and law. As I observed in my chapter Unconscionability: Reciprocity and Justice (download here):

"By 1820 . . . [American] law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law.” Substituting policy in place of a formal connection to justice, American courts and jurists found no warrant for the principle of fairness in exchange apart from grants of equitable relief.

But then ... came Article 2 of the Uniform Commercial Code, which has become the law for the sale of goods in every state (except Louisiana) in the United States. UCC 2-302 provides that 

(1) If the court as a matter of law finds the contract or any clause thereof to have been unconscionable at the time it was made the court may refuse to enforce the contract, of it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

One might have expected the drafters of this provision to define an important word like "unconscionability" given its virtual absence from the preceding 100 years of the law of contracts. Alas, they did not, which has caused courts to scramble to define it on their own. I won't trouble my readers with the varieties of judicial understandings of unconscionability but notwithstanding its undefined state, "unconscionability has provided twentieth- and twenty-first-century contract parties with mixed success. That success, however, has not come with clarity or predictability." Without a tether to the long-standing Christian tradition of virtue in law "legal opinions applying unconscionability have had a difficult time explaining it."

Five hundred-plus years of the Western legal tradition, drawing on biblical, Roman law, and Aristotelian insights, provided a clear understanding of unconscionability. Avoiding sales for double the market (or purchases for less than half) price gave the market enough space but couldn't address collateral contract terms. Yet, such a straightforward rule enjoyed the benefits of clarity and predictability. Quoting my conclusion, 

This genealogy of the birth, growth, blight, and revitalization of unconscionability demonstrates at least two truths. First, no matter its current configuration, unconscionability is an unmistakably Christian doctrine of law. ... Second, shorn of any recollection of its historical roots, contemporary legal thought finds itself the heir of a rule of contract law without any clear idea of why the law should be or how it can be applied.

Finally, I'll end here as I ended there:

Tracing the history and lineaments of unconscionability should give those who acknowledge the truths of God’s revelation in Scripture, as well as in keen observations of the world, confidence to assert the doctrine of unconscionability when the occasion demands. ... The struggle for contractual justice was and is a real one and that the classical Christian tradition provides a powerful platform from which to seek the just result.