Unconscionability

• Anterior vs. posterior evaluation of fairness. Tuckwiller court looked

2-302. Unconscionable contract or Clause.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

• Eisenberg: Two different tracks for unconscionability, one being fairness, the other efficiency. Eisenberg would classify something as unconscionable if it is neither fair nor efficient.

Author: international

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