European Unfairness and American Unconscionability: A Letter From a European Lawyer to American Friends

Sibony, Anne-Lise
(2019) European Review of Contract Law — Vol. 2, n° 15, p. 195-226 (2019)

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(en) The Unfair Contract Terms Directive (UCTD) and the Common Law doctrine of unconscionability in the United States both pursue the same aim: they seek to protect consumers against abuse of power by traders who are in a position to exploit the asymmetry of the contracting process. However, both sets of rules rest on different premises. In particular, they allocate trust differently between courts and markets. This accounts for deep-running differences despite apparent similarities. This contribution analyses these similarities and differences by commenting on the unconscionability doctrine as expressed in the Draft Restatement of consumer contracts from a European point of view.
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Sibony, A.-L. (2019). European Unfairness and American Unconscionability: A Letter From a European Lawyer to American Friends. European Review of Contract Law, 2(15), 195-226. https://doi.org/10.1515/ercl-2019-0015 (Original work published 2019)