The doctrine of unconscionability remains a venue of debate and controversy not only for legal scholars, but for judges and attorneys in this country and abroad. The idea of unconscionability is in itself problematic. How can a judge, jury, or attorney deem what is or is not fair? Even if an agreement is deemed unfair and thus unconscionable, do the courts even have a right to interfere into matters where two parties exercised their free will and entered into a legally binding agreement? These are a few of the problems that immediately surface around the doctrine and practice of unconscionability. It is an important issue because it is very much entangled with questions of how much power the courts have in the every decisions and agreements that citizens make each and every day. Despite these pragmatic questions, the doctrine of unconscionability should be recognised by the common law courts because it promotes fairness and balance in a society, which in the most basic sense, is what the courts were originally designed to protect. The precedent of unconscionability is one way that the courts can define an abstract and subjective idea like fairness.
[...] As more and more court cases set precedents for what is and what is not unconscionable16a a 16a Lawrence, J "Keeping a Running Account on the Preference Laws" (1996) 4 Insolvency Law Journal the doctrine of unconscionability will become easier to define and implement. The Virginia Law Review emphasized this point, “Allowing the courts to pass directly on unconscionability should permit the development of precedents which lawyers can rely upon in determining what might or might not be considered unconscionable.” H.C.C., Jr. [...]
[...] Unconscionability is not meant, however, to become an out for everyone that enters a contract and then simply wishes through buyer's remorse or some other type of regret to get back out of the contract15b b 15b Johnston, T "Insider Preference Recovery Against Non-Insiders" (1991) 93 West Virginia Law Review The doctrine is not meant to regulate run-of-the-mill cases. The article in The Virginia Law Review states this very well, “Contracts will not be stricken unless grossly unreasonable as viewed from the standard of normal necessary business practices for the type contract involved. [...]
[...] Less frequently, common law courts have denied damages for breaches of unfair contracts, artificially limiting the language or finding undue influence, fraud, ambiguity, or lack of mutuality. It has become common for dominant parties to dictate terms, as in standardized form contracts. The weaker party has no room to negotiate and must “take it or leave Moreover, he may be lulled into believing that inquiry is unnecessary in the face of an apparently legitimate and authoritative printed form.” Korobkin, R. [...]
[...] In the simplest terms, the doctrine of unconscionability gives the courts the power to determine that a contract or agreement is unfair. The Virginia Law Review addresses this point directly: a court may refuse to enforce a contract, or any clause thereof, which it finds to have been unconscionable at the time it was made.” H.C.C., Jr. Unconscionable Sales Contracts and the Uniform Commercial Code, Section 2-302. Virginia Law Review, Vol No (May 1959): 583-592. The new power that the courts inherit with the doctrine of unconscionability is to make a contract illegal solely on the basis of whether or not the contract was fair to both parties. [...]
[...] Re-Assessing the Law Review in the Age of Cyberspace Akron L. Rev (1996). From the editor of Jurist. Richard S. Harnsberger, Reflections About Law Reviews and American Legal Scholarship Neb. L. Rev (1997). Bowett, D. W International law opinions. Society of Public Teachers of Law, 36-40. Bowett, D. W The Second United Nations Conference on the Law of The Sea. International and Comparative Law Quarterly, 415-435. Langstaff, B "The Cheat's Charter" (1975) 91 Law Quarterly Review 86. Lawrence, J "Keeping a Running Account on the Preference Laws" (1996) 4 Insolvency Law Journal 171. [...]
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