A few years later, this sales law rule was ‘restated’ (virtually verbatim) as § 208 of the Restatement (Second) of Contracts, 952952. Section 208 provides: ‘If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.’ thereby elevating the concept of unconscionability to a general American rule, applicable to all contract types. 953953. See Farnsworth, supra n. 4, § 4.28.
‘Unconscionable’ does not translate easily to Danish. Admittedly, § 36 of the Contracts Act, with its focus on reasonableness, looks a lot like UCC § 2-302(1) and Restatement § 208, 954954. See Bo von Eyben, Juridisk Ordbog (defining unconscionability under UCC § 2-302 as ‘rimelighedscensur af kontraktsvilkår, svarende til aftalelovens § 36 ’). See also Andersen & Runesson, supra n. 22, at 38 (contract term may be adjusted or set aside under Article 36 ‘if the term is unconscionable’). but what ‘unconscionable’ really means is ‘extremely unreasonable’ (yderst urimelig), 955955. Various versions of Black’s Law Dictionary define unconscionable as ‘showing no regard for conscience; affronting the sense of justice, decency, or reasonableness’ or ‘completely one sided and unfair due to the significant leverage and bargaining power that one party has over the other.’ Black’s defines ‘unconscionability’ as ‘extreme unfairness’ or ‘unfairness that is shocking to the senses of the average person.’ See https://dictionary.thelaw.com/unconscionable/. especially in ‘commercial’ (non-consumer) contexts, where American courts hold the ‘unconscionability’ defense on a very tight leash. 956956. See generally Charles Knapp, ‘Unconscionability in American Contract Law: A Twenty-First Century Survey,’ UC Hastings Research Paper No. 71, available at SSRN: https://ssrn.com/abstract=2346498.
In both the UCC and the Restatement, unconscionability provides what American lawyers refer to as a ‘defense’ to contract enforcement, i.e. within the same category as fraud and duress. If, by reason of unconscionability, a court elects not to enforce the clause in question, that contract no longer binds, and we could say the same thing about a contract which a Danish court ‘sets aside’ by reason of the General Clause in § 36. Without a promise binding on the promisor, the promisee (løftemodtager) has no right to demand performance, so there can be no breach, no remedy. 957957. See Joseph Lookofsky, Consequential Damages in Comparative Context – From Breach of Promise to Monetary Remedy in the American, Scandinavian and International Law of Contracts and Sales (1989) at 31.