Faculty Author Type

Current Faculty [Marcus Moore]

Published In

Oxford University Commonwealth Law Journal

Document Type

Working Paper

Publication Date

2021

Subjects

Unconscionability

Abstract

This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Courtwatchers in the United Kingdom and other Commonwealth jurisdictions wondering whether this reinterpretation of unconscionability might represent a model for progressive reform should understand why it does not. Adrift between two doctrines with different purposes, it is insufficiently suited to serve either. Meanwhile, it may disrupt business reliance on standard form contracts, and cause tremendous contractual instability.

Comments

The Version of Record of this manuscript has been published and is available in (2021) 21:2 Oxford University Commonwealth Law Journal 336 - https://doi.org/10.1080/14729342.2021.1991648.

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