Paper by Jean-Louis Baudouin, Q.C.
Unconscionability is a relatively new concept in law. It covers a broad and often disparate range of concepts and rules in the area of formation and performance of contractual obligations. The approach of legal systems, whether they be of civilian, mixed, or common-law origin, to contracts that are inequitable, unfair, unequal, or oppressive has changed considerably since the era of economic laissez faire of the early or middle nineteenth century.
Our purpose in this short Paper is twofold. First, we must trace the origin and development of the notion of unconscionability in comparative law. It is important, indeed, before attempting to determine how the law of the future will develop, to learn from the past, to inquire about the reasons behind legal changes and identify their precise impact on traditional law. This examination will also help us clarify new trends and new legislative or jurisprudential interventions in the area.
One of the greatest merits of comparative analysis is the ability, through the examination of various legal systems, to gain a critical knowledge of one's own law. As the present seminar is devoted to reflections on an agenda for the twenty-first century, the second part of this Paper examines the legislative policies that probably will be opened in the future to deal with inequitable and oppressive contracts.
About the Author
Jean-Louis Baudouin, Q.C. Professor of Law, University of Montreal.
Citation
60 Tul. L. Rev. 1119 (1986)