Granted, Danish courts have also been reluctant to carve out commercial exceptions to pacta sunt servanda. 958958. See generally Andersen & Madsen, supra n. 29, p. 207 ff. But it seems to me that courts in Denmark (the world’s most ‘equal’ country) 959959. See http://www.demos.org/blog/10/20/15/united-states-vs-denmark-17-charts. have been somewhat more willing to adjust commercial contract terms on grounds of perceived unfairness or imbalance (what American law calls ‘substantive unconscionability), 960960. See Andersen & Madsen, supra n. 29, at 204-05 (noting that unreasonable contract content can itself justify adjustment) and 207 ff. (no basis to claim that § 36 cannot – or ought not – be applied in commercial agreements). Regarding the distinction between procedural and substantive unconscionability in American law, see, e.g., Knapp, supra n. 41, Part III.B. in this respect perhaps reflecting greater acceptance of ‘communicative justice,’ 961961. As regards this concept, see Hein Kötz & Axel Flessner, European Contract Law (1997) at 125. a somewhat more ‘paternalistic’ approach.
‘[I]t is hard [for an American traditionalist] to explain the law’s sometime refusal to enforce a promise ... just because it seems harsh or unfair. In such cases the doctrine [of unconscionability] seems paternalistic and, as such, inconsistent with the promise principle, which is expressive of and implements the right of adult individuals to set their own goals and make such arrangements as seem best to them.’ 962962. Charles Fried, ‘Contract as Promise Thirty Years On,’ 45 Suffolk University Law Review 961 (2012). Compare re. § 36 of the Scandinavian Contracts Acts, Andersen & Runesson, supra n. 22, at 38 (early critics saw the provision as unduly paternalistic protection of weaker parties).
Quite apart from nuances as regards judicial application, there is another reason why unconscionability is a more ‘narrow’ doctrine than unreasonableness in Danish law. Whereas § 36 of the Contracts Act applies, inter alia, to contracts that have ‘become unreasonable’ due to subsequent events, the American rule applies only when the clause or contract in question was unconscionable ‘at the time the contract was made.’
I shall return to this particular point in the context of ‘impracticability’ (IV below). Before I move on to that, however, I note that the CISG Convention contains no rule (whatsoever) that deals with unconscionability or unreasonableness. This, as confirmed in CISG Article 4, is an intentional omission: