Brady Williams, ‘Unconscionability as a Sword: The Case for an Affirmative Cause of Action’

ABSTRACT
Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a ‘shield’ and not a ‘sword’ leaves countless victims of oppressive contracts unable to assert the doctrine as an affirmative claim. This crippling interpretation betrays unconscionability’s equitable roots and absolves merchants who have already obtained their ill-gotten gains. But this need not be so.

Using California consumer credit law as a backdrop, this Note argues that the doctrine of unconscionability must be recrafted into an offensive sword that provides affirmative relief to victims of unconscionable contracts. While some consumers may already assert unconscionability under California’s Consumers Legal Remedies Act, courts have narrowly construed the Act to exempt many forms of consumer credit. As a result, thousands of debtors have remained powerless to challenge their credit terms as unconscionable unless first sued by a creditor. However, this Note explains how a recent landmark ruling by the California Supreme Court has confirmed a novel legal theory that broadly empowers consumers – including debtors – to assert unconscionability under the State’s Unfair Competition Law. Finally, this Note argues that unconscionability’s historical roots in courts of equity – as well as its treatment by the Uniform Commercial Code and the Restatements – reveal that courts already possess an inherent equitable power to fashion affirmative remedies against unconscionable contracts under the common law, even absent statutory authorization.

Brady Williams, Unconscionability as a Sword: The Case for an Affirmative Cause of Action, 107 California Law Review 2015 (2019).

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