Unconscionability & Complaints
نویسنده
چکیده
This article defends the strong claim that contract law does not impose obligations to perform. This is not because there are no such obligations or because contract law is disconnected from morality. Far from it. This article argues that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. In order to draw out the distinction between these ideas, I begin with an account of the doctrine of substantive unconscionability. This account avoids the oft-issued charge of paternalism, but also starkly contrasts with an alternative non-paternalist account offered by Seana Shiffrin. My claim is that the doctrine of unconscionability can be explained by the way in which an exploiting party loses his or her moral complaint. This distinction between enforcing obligations and recognizing complaints can, I argue, be used to provide a broader defense of the relationship between the contract law and the morality of promising against recent attacks from both economic and philosophical camps.
منابع مشابه
A Complainant-oriented Approach to Unconscionability and Contract Law
This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated,...
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Despite courts’ and commentators’ denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine’s demise or constraint based on claims that its flexibility and lack of clear definition threaten ef...
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