Unconscionability Part 4

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

Whatever legal rule may have been recognized on the Continent providing a remedy for a grossly unbalanced exchange, no comparable principle existed in the writ-driven world of the English common law. Of course, Church courts applying canon law maintained an active contract docket for many centuries until some time after the rupture with Rome, and Church courts applying canon law would have recognized unconscionability. And English courts of equity, while not acknowledging unconscionability as such, deployed similar concepts in cases within their jurisdiction. Courts of equity, however, rarely had occasion to deal with contract cases that were ensconced in the royal courts.

Yet, as I observe in my chapter, Unconscionability: Reciprocity and Justice (download here), there is good reason to believe that English common law juries would have applied the moral principle of justice in exchange when assessing damages:

Instructions to jurors in the sixteenth century focused on their consciences: “[D]o in this matter as God will give you grace, according to the evidence and your conscience"; "[D]oe that which God shall put in your mindes to the discharge of your consciences."

Jurors in the sixteenth century and earlier took their consciences seriously and conscience then was understood as a faculty, not the whisperings of a singing cricket:

The conscience of jurors was not an amalgam of free-floating moral intuitions. It was the faculty by which moral truths filtered through the law would be applied to the facts of a case. And until modern times the faculty of conscience would have been trained in terms of Christian moral doctrine.

Had they paid attention to their pastors and priests, English jurors would have known that  a sale for more than double (or less than half) the market price revealed a vicious heart and that, following the court's instruction, they should not compound a party's sin by betraying their own consciences by concurring.

In other words,

The absence of laesio enormis [unconscionability] in English law does not mean that commutative justice [equality in exchange] had no place. Multiple jurisdictions—ecclesiastical, equitable, and legal—each with its own mode of adjudication and with its own body of procedural and substantive law, meant that sometimes commutative justice functioned openly, at other times obliquely, or perhaps entirely hidden in a jury’s general verdict.

Next time we'll see that unconscionability disappeared from the common law over the next two centuries as the connection of law and virtue faded. And what to makie of unconscionability's return in the 20th-century Uniform Commercial Code will bring my survey to an end.