Nicolas Cornell, ‘A Complainant-Oriented Approach to Unconscionability and Contract Law’

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction will not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. The Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party that engages in exploitative behavior may lose his or her moral standing to complain. It is because such parties have lost their moral standing to complaint that the law, through unconscionaibility doctrine, bars them from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism, and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, the Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints.

Cornell, Nicolas, A Complainant-Oriented Approach to Unconscionability and Contract Law (September 12, 2015). University of Pennsylvania Law Review, forthcoming.

First posted 2015-09-15 05:58:58

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