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5 J. L. & Bus. 15 (1998)
Evolving Concept of Unconscionability in Modern Contract Law

handle is hein.journals/jourlbun5 and id is 19 raw text is: 1998 / Evolving Concept / 15 EVOLVING CONCEPT OF UNCONSCIONABILITY IN MODERN CONTRACT LAW Arthur J. Marinelli* (I)t ultimately became apparent that unrestrained freedom of contract permits legislation by private parties whose bargaining advantage is so great that the dictated contract does not manifest any volition on the part of the weaker party. There is no freedom of contract in the equal treatment of unequals.t I. INTRODUCTION The doctrine of unconscionability as found in Section 2-3022 of the Uniform Commercial Code3 is one of the most widely debated sections of the Code.' Part of the debate stems from the fact that the doctrine of unconscionability is one of the most important conceptual tools that can be used by the courts to place limits on the freedom of contract which is one of the basic tenets of the law of contracts.' Section 2-302 affords judges great power to police agreements without having clear guidance because of the abstraction of the term unconscionability. Moreover, the doctrine of unconscionability has been used in a wide variety of cases outside of the scope of the Uniform Commercial Code.' *Professor. Business Law. Department Management Systems. Ohio University, Athens, OH 45701 'John E Murray. Jr.. Unconscionability: Unconscionability. 31 U. Pitt L. Rev 1, 72 (1969) U.C C § 2-302 (1 990)provides. (I) If the court as a matter of law finds the contract or any clause of the contract to have been unconsieonable at the time it was made the court may refuse to enforce the contract. or it may enforce the remainder of the contract x\ ithout the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result (2) \\ hen it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination 3Hereinafter referred to U.C.C or Code 4Numerous articles and studies have been written on the subject of unconscionability There is no general consensus conceming the factors that should be used by courts in making their decision or even the role that unconscionabilit) should play in contract la\\ See Arthur Allen Leff. Unconscionablit and the Code - The Enperor's-New Clause, 115 U. Pa L. Rev 458. (1967). M P Ellinghaus. In Deeinse of tnconscionability. 78 Yale L.J 757 (969). John F Murray. Unconscionability Unconscionability. 31 L Pitt L Re\ 1 (1969). John Andre\ Spanogle. Analy:ing.Unconscionabihi) Problems, 117 U. Pa L. Rev. 931(1969); Robert A Hillman. DebiikIng Some .f)lts AbowuUnconscionability. A New Frameiiork for UC.C Section 2-302. 67 Cornell L. Rev. I (1981). Daniel T Ostas- Predicting iiconscionabilir Decisions An Econonic Alodel and Empirical Test. 29 Am Bus, L 535 (1991) Frank P Darr. t nconsc ionabiri, and Price Fairness 30 Houston L. Rev 1819 (1994)(Consistent and predictable patterns emerge from judicial interpretation of unconscionabilit) All but some of the cases can be anticipated by a model incorporating a community norm as to price. a concern for process in the individual case. and concern for the ability of the market to correct the situation over time) Id at 1848 Richard Craswell. Property Rules and Liability Rules in Unconscionability and Related Doctrines, 60 U. Chicago L Rev 1 (1993) 'See e g John Howard Jackson & Lee C Bollinger. CONTRACT LAW IN MODERN SOCIETY 940-43 (2 d ed. 1980), Eric A Posner Coiniract Law In The Welfare State.A Defense Of The Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom of Contract, 24 J Of Legal Studies 283 (1995) (Argues that Unconscionability, and similar laws restricting Freedon of contract are best understood as legal mechanisms of restricting the extension of credit to high risk borrowers, particularly the poor and that this policy is broadly consistent with the goal of maintaining a welfare system within a market.) Charles R. Bogle, Unconscionabiliy Conditions. A Contiractual .4nalysis of Conditions On Public Assistance Benefits. 94 Columbia L Rev. 193 (1994) (Applying UnconscionabilitN Principles to restrictive conditions on public assistance benefits would allow courts to police legislative bargains more closely for substantixe unfairness while giving them a firmer and more cohesive basis for doing so then the court's current rhetoric allows ) 221 Freidrich Kessler Contracts of Adhesion - Some Thoughts About Freedom ofContract, 43 Colum. L. Rev. 629, 640-41 (1943) 6See Ellinghaus. supra note 4, at 808-12. See also. Restatement (Second) of Contracts §208 (1979) (which provides for an unconscionability provision closely paralleling §2-3 02 of the Code Example of cases include Germantown Mfg Co \ Rawlinson, 491 A 2d 138. 14748 (1985) (unconscionability applied to confession ofjudgment notes ), Kohl \ Bay Colony Club 398 So. 865, 869 (Fla Dist Ct App 1981). (Condominium owners using unconscionability to avoid recreational lease). Dillman and Assoc , Inc \ Capital Leasing Co.. 442 N.E. 2d 311. 316 (111 App. Ct. 1982) (applied to equipment lease case) Julie Hofherr Bruch, Comment, Forum

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