When Harry Met Kreutziger: A Look into Unconscionability Through the Lenses of Culture

Abstract

When addressing unconscionability, the legal academy focuses almost exclusively on the transaction between the parties, analyzing the parties themselves only in passing, if at all. More importantly, the current writing on unconscionability does not analyze the parties in the context of their culture. In cases like the famed Harry v. Kreutziger, now marking its 30th anniversary, the appropriate resolution to the unconscionability argument should rest not only on the transaction itself, but also on the culture of the parties and the effect that culture may have had on their dealings. By failing to conduct such a cultural analysis, the academy and courts have not only continuously provided little guidance to future litigants, but also failed to treat culturally like cases alike. The cultural approach shares outcomes with two more established approaches to unconscionability: the paternalistic and the economic approaches. The cultural view of unconscionability may result in contracts being rescinded in many (but not all and not for the same reasons) of the situations in which paternalism would have them rescinded. On the other hand, the cultural view also shares outcomes with the economic approach: unconscionability, applied through a cultural analysis, will also be a narrow doctrine of exceptional application (but for practical reasons, not purposely, as intended by the economic approach).

Keywords: unconscionability, paternalism, law and economics, culture, cultural analysis of unconscionability, new theory for unconscionability

JEL Classification: K12