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Should the common law courts recognise the need for a general doctrine of unconscionability?

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  1. Introduction
  2. The key words in the definition
  3. Considering every impact that plays a role in a contract
  4. The case of Williams v. Walker-Thomas Furniture Co
  5. The case of a set of war bonds
  6. Conclusion
  7. Bibliography

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. [...]


[...] Without the doctrine of unconscionability, parties like the single mother in this particular case have no hope for protection9a a 9a Richard A. Epstein, Faculty-Edited Law Journals Chi.-Kent L. Rev (1994) . Another international example is the case of a set of war bonds that were sold between the National Bank of Hungary and the Hungarian Cash Office for Foreign Credits. This is a great example because it demonstrates that this concern of unconscionability does not just exist between an individual and a company like in the last example, but that it can happen even between two businesses or two governmental agencies. [...]

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