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Report No. 199

Prof. Leff starts in his lengthy paper by a criticism of s. 2.302 of the Uniform Commercial Code. He says:

"If reading this section makes anything clear, it is that reading this section alone makes nothing clear about the meaning of 'unconscionable' except perhaps that it is pejorative. More particularly, one cannot tell from the statute whether the key concept is something to be predicated on the bargaining process or on the bargain or on some combination of the two, that is, to use our terminology whether it is procedural or substantive. Nonetheless, determining whether the section's target is a species of quasi-fraud or quasi-duress, or whether it is a species of quasi-illegality, is obviously the key to the bite and scope of the provision.

One central thesis of this essay is that the draftsman failed fully to appreciate the significance of the unconscionability concepts' necessary procedure-substance dichotomy and that such failure is one of the primary reasons for section 2-302's final amorphous unintelligibility and its accompanying commentary's irrelevance"

Unfair (Procedural and Substantive) Terms in Contract Back

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