George Mason School of Law
Contracts II
Unconscionability
Not to be shared
© F.H. Buckley
fbuckley@gmu.edu
1
Forms of Unconsionability
 UCC § 2-302. Unconscionable
Contract or Clause
 (1) If the court as a matter of law finds the contract or
any clause of the contract to have been unconscionable
at the time it was made the court may refuse to enforce
the contract, or it may enforce the remainder of the
contract without the unconscionable clause, or it may so
limit the application of any unconscionable clause as to
avoid any unconscionable result.
2
Forms of Unconsionability
 UCC § 2-302. Unconscionable
Contract or Clause
 (1) If the court as a matter of law finds the contract or
any clause of the contract to have been unconscionable
at the time it was made the court may refuse to enforce
the contract, or it may enforce the remainder of the
contract without the unconscionable clause, or it may so
limit the application of any unconscionable clause as to
avoid any unconscionable result.
3
Forms of Unconsionability
 UCC § 2-302. Unconscionable
Contract or Clause
 (1) If the court as a matter of law finds the contract or
any clause of the contract to have been unconscionable
at the time it was made the court may refuse to enforce
the contract, or it may enforce the remainder of the
contract without the unconscionable clause, or it may so
limit the application of any unconscionable clause as to
avoid any unconscionable result.
4
Forms of Unconsionability
 Substantive Unconscionability
 The “just price” doctrine
 Procedural Unconscionability
 “bargaining naughtiness”
5
Was secured lending in Walker-Thomas a
problem of substantive unconscionability?
6
Substantive Unconscionability
 Usury legislation
 Barriers to personal property security
interests in consumer goods in Article
9
7
Procedural Unconscionability
 Was Mrs. William’s consent tainted in
some way, short of actual duress or
fraud?
8
Why might a consumer agree
to “excessive” interest rates?
 Lack of capacity?
 Something like Duress?
 Something like Fraud: An
informational problem?
 Moral hazard?
 Signaling?
9
Lloyds Bank v. Bundy
 Lack of capacity?
 Duress?
 An informational problem?
10
Lloyds Bank v. Bundy
11
Lloyds Bank v. Bundy
 What did the bank manager (Head)
do that was wrong?
 Did he owe any duties to the
borrower (Michael)?
 Did he owe any duties to Herbert?
12
Denning’s Categories
 “Duress of goods”: Inequality of
bargaining power
 Hochman at 407
 Austin v. Loral
13
Denning’s Categories
 The expectant heir: One-and-twenty
Wealth, my lad, was made to wander,
Let it wander as it will;
Call the jockey, call the pander,
Bid them come and take their fill. 20
When the bonny blade carouses,
Pockets full, and spirits high—
What are acres? What are houses?
Only dirt, or wet or dry.
Should the guardian friend or mother
Tell the woes of wilful waste,
Scorn their counsel, scorn their pother;—
You can hang or drown at last!
Samuel Johnson
14
25
Denning’s Categories
 Undue influence




15
Fiduciary relationship
Employer exploiting employee
D&C Builders v. Rees
D&C accepts £300 as full payment of a debt
of £482 when it desperately needed money
to fend off bankruptcy, and Rees knew this
Denning’s Categories
 Salvage Agreements
 Post v. Jones
16
A General Principle of Inequality of
Bargaining Power?
 “English law gives relief to one who, without
independent advice, enters into a contract or
transfers property for a consideration which is
grossly inadequate, when his bargaining power
is grievously impaired by reason of his own
needs or desires, or by his own ignorance or
infirmity, coupled with undue influences or
pressures brought to bear on him by or for the
benefit of the other.”
17
Why look at an English case?
 Maryland is a foreign jurisdiction to
Virginians…
18
Why look at an English case?
 The importance of style:
 Broadchalke is one of the most pleasing
villages in England. Old Herbert Bundy was
a farmer there. His home was at Yew Tree
Farm. It went back for 300 years. His family
had been there for generations. It was his
only asset. But he did a very foolish thing.
He mortgaged it to the bank. Up to the very
hilt.
19
Why look at an English case?
 The Analogic Imagination:
 Gathering all together, I would suggest that
through all these instances there runs a
single thread. They rest on "inequality of
bargaining power".
20
Why might a consumer agree
to “excessive” interest rates?
 An informational problem
 Thornborrow v. Whitacre, 92 Eng.Rep. 270
(1705): W. borrows £5 and in return
promises to pay two grains of rye-corn in
the first week, four in the second, eight in
the third, and so on for a year. The court
refused to enforce the contract when it
appeared that there was not enough grain in
the whole world to satisfy this.
 Was Lloyd’s Bank such as case? Or Williams
v. Walker-Thomas
21
Why might a consumer agree
to “excessive” interest rates?
 A moral hazard problem
 What does bankruptcy law and the welfare
safety net do to our investment decisions?
22
Moral Hazard
A range of outcomes associated with an investment opportunity
23
Moral Hazard
How is one’s economic calculus affected if costs
are curtailed at 0 on the left side of the curve?
24
Moral Hazard
In that case, it’s all upside:
Heads I win, tails you lose
25
Moral Hazard: We make risker choices
when we don’t pay for downsides
Thank God I
have insurance!
26
Moral Hazard
Do traffic signals cause accidents?
27
How to reduce speed levels…
28
Moral Hazard
 So a consumer might be more
willing to court default with a
high risk loan because of the
welfare safety net.
29
Moral Hazard
 So what’s “excessive”?
 Is there such a thing as “excessive risk
aversion”
30
Why might a consumer agree
to “excessive” interest rates?
 Signalling
31
Signalling
 Two borrowers approach a lender.
One is high risk, the other low risk.
The borrowers know their quality
but the lender cannot tell them
apart. How can he distinguish
them?
32
Signalling
 Two borrowers approach a lender. One is
high risk, the other low risk. The
borrowers know their quality but the
lender cannot tell them apart. How can he
distinguish them?
 Assume that default is costly for both
borrowers. However, the low risk
borrower has a lower probability of
default and a lower cost of default
33
Signalling
 A signalling equilibria if a “nonmimicry” constraint
 By their willingness to accept the
cost of a high interest loan one
can tell them apart and they don’t
have an incentive to switch
34
Signalling
 Separating equilibrium:
Benefit > Cost*High Quality Borrower
Benefit < Cost*Low Quality Borrower
*Cost is a function of the probability of default
35
Signalling
 Signalling doesn’t work if a
pooling equilibrium
 Low quality can mimic high quality
36
Signalling
 Pooling equilibrium
Benefit > CostHigh Quality Borrower
Benefit > CostLow Quality Borrower
37
Cheap Talk as a Pooling Equilibrium
Hobbes: He which performeth
first doth but betray himself
to his enemy.
38
Signalling
 A separating equilibrium if the low
risk borrower is unwilling to accept
a penalty on default?
39
Just what was wrong in WalkerThomas?





40
Capacity?
Poverty?
Nature of goods?
Welfare grants?
Kids?
Seabrook: 502
Apartment to be ready three months later
Unfinished Apartment Building
41
Seabrook
 How long was the delay?
42
Seabrook
 Do you think counsel for Commuter
Housing was trying to pull a fast one
in clauses 33 and 19?
43
Seabrook
 Do you think counsel for Commuter
Housing was trying to pull a fast one
in clauses 33 and 19?
 What did the court say was missing?
44
Seabrook
 Do you think counsel for Commuter
Housing was trying to pull a fast one
in clauses 33 and 19?
 What did the court say was missing?
 Why not strike the clause and imply a
reasonable time (and might that be
four months?
45
Seabrook
 Can you articulate the legal principle
behind the case?
46
Seabrook
 Can you articulate the legal principle
behind the case?
 “absence of meaningful choice”
 “Once the consumer enters to
merchant’s trap … he is caught in a web”
 “The concept of laissez-faire ... Has no
place in our enlightened society”
47
Here’s one legal principle …
48
Seabrook
 Did the lessee have “no choice but to
sign an unconscionable lease
agreement”
 “does not have the option of shopping
around”
49
Seabrook
 Did the lessee have “no choice but to
sign an unconscionable lease
agreement”
 Were there other rental properties in
NYC?
50
Seabrook
 Did the lessee have “no choice but to
sign an unconscionable lease
agreement”
 Were there other rental properties in
NYC?
 If they were hard to get, might rent
control have had something to do with
this?
51
Seabrook
 Just what was unconscionable?
 Did the lessee know that the building was
not completed when he signed the lease?
52
Seabrook
 Just what was unconscionable?
 Do you think the lessee might have
considered that there was a possibility
that the building would not be completed
three months later?
53
Seabrook
 Just what was unconscionable?
 Do you think the lessee might have
considered that there was a possibility
that the building would not be completed
three months later?
 What do you think he would have
expected to happen in that case?
54
Seabrook
 If you thought that the lessor should
have provided for a maximum period,
is that the hindsight bias at work?
55
Henningsen
1960 Plymouth
Look: Fins!!!
56
Henningsen
1960 Plymouth … in two-tone!
57
Henningsen
With a push-button tranmission!
58
And today?
2012 Chevrolet Spark
59
Henningsen
1960 Plymouth
60
Henningsen
And what did they do with their car!!
61
Henningsen
 Are exemption clauses intrinsically
suspect?
62
Henningsen
 A right to dicker?
$3.99? I think we can
do better, don’t you?
“No bargaining is engaged
with respect to it”
63
Henningsen
 Why only a three months warranty on
parts?
64
Henningsen
 Were the Big Three immune from
competition?
 Look at the list on 506
65
Henningsen
 Were the Big Three immune from
competition?
66
Henningsen
 Were the Big Three immune from
competition?
 If so, why do you think that was?
67
Henningsen
 Were the Big Three immune from
competition?
 Is a similarity in prices or terms
across a market evidence of
cartelization or of a competitive
market?
68
Henningsen
 Were the Big Three immune from
competition?
 Is a similarity in prices or terms
across a market evidence of
cartelization?
 Would you expect to a monopolist
exploit his clout with prices and not
terms?
69
Henningsen
 Would you expect to a monopolist
exploit his clout with prices and not
terms?
 Is it different if the information about
warranties is difficult to understand?
70
Henningsen
 Were the Big Three immune from
competition?
 Is a similarity in prices or terms
across a market evidence of
cartelization?
 Does competition as to terms assume
that all consumers screen?
 Free riding?
71
Henningsen
 Were the Big Three immune from
competition?
 Is a similarity in prices or terms
across a market evidence of
cartelization?
 Does competition as to terms assume
that all consumers screen?
 Suppose you heard that one firm had an
extortionate contract?
72
Litigation or Regulation?
 OIRA’s Mandate: Federal agencies should
promulgate only such regulations as are
required by law, are necessary to interpret the
law, or are made necessary by compelling
public need, such as material failures of private
markets to protect or improve the health and
safety of the public, the environment, or the
well-being of the American people. In deciding
whether and how to regulate, agencies should
assess all costs and benefits of available
regulatory alternatives, including the
alternative of not regulating.
73
Federal Arbitration Act of 1925
 Partial preemption of state law
 Rent-a-Center v. Jackson at 513
74
Understanding our intuitions about
fairness in bargaining
 Procedural Fairness
 Substantive Fairness
 Distributive Justice
75
Game Theory and the Revival of
Substantive Unconscionability
 The game theorist’s revival of
cardinal utility
76
The two-person bargaining game
 The Edgeworth Box Function provided
a bargaining model based on ordinal
utility (indifference curves)
77
Recall the Contract Curve
Indifference curve in commodity space
Bess
A
 E

D
 F
B
G
C
Mary
78
78
The two-person bargaining game
 The Edgeworth Box Function teaches
us that bargaining is a non-zero sum
game
 But at the heart of the bargaining
game is a zero-sum game
79
Blowing up the bargaining lens
A
C
•
•
F•
•G
B•
80
80
Blowing up the bargaining lens
A
C
•
•
F•
•G
B•
81
81
At C Mary is much better
off than at A, and Bess is
neither better nor worse
off
Blowing up the bargaining lens
A
C
•
•
F•
•G
B•
At B Bess is much better
off than at A, and Mary
is neither better nor
worse off
82
82
Recall the Contract Curve
Indifference curve in commodity space
Bess
A
 E

D
 F
B
G
C
Mary
83
83
Blowing up the bargaining lens
A
C
•
•
F•
•G
B•
84
84
At G both parties are
better off than at A
Recall the Contract Curve
Indifference curve in commodity space
Bess
A
 E

D
 F
B
G
C
Mary
85
85
Does unconscionability have anything to do
with how bargaining gains are divided?
A
C
•
•
F•
•G
Is your intuition that
G is in some sense
fairer than B or C?
B•
86
86
Does unconscionability have anything to do
with how bargaining gains are divided?
A
C
•
•
F•
•G
B•
But as we are talking
about ordinal utility, it is not
meaningful to speak of how
much better off someone is
at G relative to B or C
87
87
Does unconscionability have anything to do
with how bargaining gains are divided?
A
C
•
•
F•
•G
B•
To do so, we would need
to move from ordinal
to cardinal utility
88
88
Ordinal and Cardinal Utility
 Ordinal numbers: First, second,
third…
 Cardinal numbers: 1, 2, 3 …
89
Ordinal and Cardinal Utility
 The Edgeworth Box Function provided
a bargaining model based on ordinal
utility (indifference curves)
 However, prior to the ordinalist
revolution of the 1930s, economists
thought of utility in a cardinal way
90
Cardinal utility
Act always to
increase the
greatest
happiness of the
greatest number
91
Are you a cardinalist?
 Yes, if you think interpersonal utility
comparisons are meaningful
92
Are you a cardinalist?
 You are charged with designing a
country’s welfare policy. Should wealth
transfers be from rich to poor or the
other way around?
93
Are you a cardinalist?
 You are charged with designing a
country’s welfare policy. Should wealth
transfers be from rich to poor or the
Blimey, this social justice
other way around?
business is trickier than I
thought!
94
Cardinalists assume
we can measure utility levels
We move from
commodity to
utility space
A
G
C
95
95
Cardinalists assume
we can measure utility levels
The units of
measurement are
now in “utils,” not
commodities
A
G
C
96
96
Let’s suppose we can
measure Mary’s utility levels
Utility space
A
G
C
Cardinal, not ordinal utility
97
97
And suppose we can
do the same for Bess
B
Bess’s utility
G'
A
Utility Space
G
C
98
98
Mary’s utility
To simplify we normalize the
utility functions of both from 0 to 1.0
1.0
Bess
0
1.0
Mary
99
99
We can then represent the
contract curve in utility space
B
BC is concave (bends outward)
because we assume that joint
utility is maximized when gains
are shared
Bess
A
Mary
100
100
C
The Presolution
B
Every point on BC represents
the “presolution” to the game:
they are feasible and efficient
Bess
A
Mary
101
101
C
The Solution
The “solution” to the
two-person bargaining
game picks one point on
the contract curve
1.0
Bess
0
1.0
Mary
102
102
The Nash Solution
1.0
Nash solution of
(.75* .8 =) .6
•
Bess
Nash maximizes the
product of the utility gains
Mary
0
1.0
Howard Raiffa, The Art and Science of Negotiation (1982)
103
103
The hard bargainer doesn’t
seek the Nash Solution
1.0
•
Bess
Mary insists
on a payoff
of .95
0
Mary
104
104
.95 1.0
Do we have fairness intuitions
which think this unfair?
1.0
•
Bess
Mary insists
on a payoff
of .95
0
Mary
105
105
.95 1.0
The ultimatum game
 We have $1,000 to divide between us.
 I first decide how the money is to
divided.
106
106
The ultimatum game
 We have $1,000 to divide between us.
 I first decide how the money is to
divided.
 In the second stage you decide whether
or not to accept the split I propose.
107
107
The ultimatum game
 We have $1,000 to divide between us.
 I first decide how the money is to
divided.
 In the second stage you decide whether
or not to accept the split I propose.
 If you accept the split we both take our
respective shares.
 If you reject the split neither of us get
anything.
108
108
The ultimatum game
 In the first round I choose $950, leaving
you $50
 Take it or leave it?
109
109
The ultimatum game
Player 1
Player 2
Accept
500, 500
Fair
Unfair
Player 2
Reject
0, 0
Accept
950, 50
Is the unfair solution Paretian?
110
Reject
0, 0
Do we have built-in fairness constraints?
 You see that Safeway refuses to charge
a premium for a shovel during a snow
storm
 Is it being irrational?
111
111
Now back to the ultimatum game
 Suppose we refused to enforce
bargains that appear wholly onesided?
 This would result in an efficiency loss.
But would chilling the hard bargainers
result in a greater number or bargains,
and a net efficiency gain?
112
112
Last fairness question:
Distributional Justice
113
Distributional Justice:
Who says it was fair to start at point A?
Bess
A
 E

D
 F
B
G
C
Mary
114
114
Distributional Justice:
What if we started at point E?
Bess
A
 E

D
 F
B
G
C
Mary
115
115