The Philosophical Dimensions of the Doctrine of Unconscionability

Abstract

The doctrine of unconscionability permits courts to invalidate contracts that they deem to be fundamentally unfair. Section 2-302 of the Uniform Commercial Code (UCC),' which embodies this doctrine, is one of the Code's most controversial provisions.2 By 1967, only 16 years after the first official version of the Code appeared, over 130 articles had been published on the doctrine of unconscionability.3 Many of the articles published in the 1960s were aimed at providing guidance to courts applying the unconscionability doctrine. However, in 1970, Robert Braucher, author of the UCC's provisions concerning unconscionability, remarked that are probably not much more ready now than we were twenty years ago to arrive at comprehensive reasoned elaboration of what is unconscionable .... We may not have added much to the old saw,'A fair exchange is no robbery.'5 Braucher's remark raises two important questions. First, why after nineteen years and well over one hundred law review articles did legal scholars feel that they were unable to provide courts with a rea-

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