of neutrality, to emerge from the closet of outmoded techniques and
redundant philosophies, and to declare oneself as the instrument for
alleviating oppression, redressing bargaining imbalance, cancelling
unfair advantages, and generally overseeing and ensuring probity and
fair dealing of both a procedural and substantive kind? If, after all, this
is what courts
or should be able to do, let
recognise for what they are the means by
they are to do it.
The harbinger of this new philosophy
of the Uniform
Commercial Code., which gives American courts an overriding discretion
to cancel or amend contracts, or parts of contracts, for the sale of goods
deemed to be unconscionable.' This discretion has been extended in
some jurisdictions within the United States to cover other types of
contracts in addition to those for the sale
goods.8 Marching behind
come such English manifestations as the doctrine of inequality of
bargaining power: the pubescent concept of economic duress,1° and
the doctrine of fundamental breach of contract-although the House of
Lords has at last, it seems, staked that particular vampire."
It is my contention that the suppositions which have led to this new
approach are fallacious; that, far from being opposed, justice and cer-
tainty are close approximations or harmonious objectives; that tradi-
tional methods of adjudication already incorporate to a sufficient
degree the end ofjustice (or omit to do
for good reason) and that the
rejection of these methods is therefore essentially misguided and itself a
source of potential injustice.
propose to illustrate and develop these
contentions by examining a number
familiar decisions which present
quite directly the supposed confrontation of justice and certainty in the
common law of contract. First of all, however,
must say a little of
mean by these central expressions: justice and certainty.
The American Realists tell us that certainty in contract law is
definition of unconscionability is given
the Uniform Commercial Code. This
deliberate omission is reminiscent of Stewart
approach to obscenity: he couldn't say
what it was, but he knew it when he saw it. See his judgment in
184. Many and various attempts have been made to flesh
a definition of un-
at least create a structure within which the concept might develop.
e.g. Albert Merrill School
2d 378 (1974) (tuition fees);
2d. 130 (1977) (commercial tenancy);
(1979) (residential tenancy);
549 P.2d 903 (1976) (advertising). But
cJ Re Ekins-Dell Manrrfacturing
864 (1966) refusing to apply 2-302 by analogy to a security agreement. The court here
the economic dubiousness and institutional difficulty inherent in judicially
refusing to enforce otherwise valid agreements "on the ground of unconscionability.
According to Professor Atiyah, this represents a return to an era when courts exercised
a general paternalistic jurisdiction over contracts, in order to ensure their fairness and
probity, Remaining vestiges of this supposed jurisdiction reside in the control of penalty
contracts in restraint of trade.
R.F.F.C., Pt. One, and also Lord Diplock in
W.L.R. 1308. 1315,
e.g. The Siboen
Lloyd's Rep. 293;
119791 3 All E.R.
North Ocean Shipping
E.R. 737 at 741.
AlecLobb (Garages) Ltd.