Should the common law courts recognise the need for a general doctrine of unconscionability?
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document in English
civil law
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published 21/05/2008
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SummaryThe 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.
Table of Contents
- First point - what additional authority the doctrine of unconscionability lends to the courts.
- The key words in this definition are unfair surprise and oppression.
- The courts can not possiblly consider every impact that play a role in a contract.
- The case of Williams v. Walker-Thomas Furniture Co. in 1965.
- 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.
- The Virigina Law Review an imaginary automobile has been bought and sold.
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