Anne-Lise Sibony, ‘European Unfairness and American Unconscionability: A Letter from A European Lawyer to American Friends’

ABSTRACT
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.

Sibony, Anne-Lise, European Unfairness and American Unconscionability: A Letter from A European Lawyer to American Friends (February 12, 2019). Forthcoming in European Review of Contract Law (ERCL) 2019, special issue on the US Draft Restatement on Consumer Contracts; Cahiers du CeDIE Working Paper N° 2019/01.

First posted 2019-04-07 10:31:33

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