41 Pages Posted: 2 Mar 2013
Date Written: January 1, 2001
When the Uniform Commercial Code (UCC) Rule 2-302 introduced the innovative unconscionability doctrine in the 1960s, the undefined concept created a wild card in contract law. A blurred doctrine designed to address extreme unfairness, unconscionability has been the focus of endless commentary but has not been a frequent basis for relief. This article explores unconscionability in terms of where it has been, where it is going, and how the Article 2 revisions process has affected the concept’s outlook. It begins with a brief overview of the doctrine’s controversial birth as part of Article 2 nearly forty years ago. Part I next examines unconscionability’s development under case law and commentary. Part II explores how the Article 2 revisions process has addressed unconscionability, including the drafting committee’s various substantive approaches. Giving special attention to the version almost approved in 1999, the article weighs that aborted effort against the more conservative “status quo” content of the current draft. Part III addresses the larger picture, concluding that the failed revisions process may not be a failure for contract law and that the very subtle changes in the current Section 2-302 may actually assist the natural development of a doctrine renowned for its mysterious qualities. In short, this unconscionable quandary may ultimately yield quite comfortable results.
Keywords: Uniform Commercial Code, UCC, unconscionable, unconscionability, Rule 2-302
Suggested Citation: Suggested Citation
Swanson, Carol B., Unconscionable Quandary: UCC Article 2 and the Unconscionability Doctrine (January 1, 2001). New Mexico Law Review, Vol. 31, p. 359, 2001. Available at SSRN: https://ssrn.com/abstract=1929847