Hastings Law Journal


Harry G. Prince


In California and many other states, courts often engage in the practice of reforming contracts based upon a determination that some part of the bargain was unconscionable. Professor Prince analyzes the unconscionability doctrine as it has been applied in California, particularly in the recent Buchwald v. Paramount Pictures Corp. decision. In Buchwald the court used the unconscionability doctrine to rewrite the motion picture industry contract on behalf of Art Buchwald, a sophisticated party represented by two agents. In evaluating the reasoning underlying Buchwald and other decisions, the author concludes that these cases raise significant doubt about the soundness and consistency of the unconscionability doctrine as applied by the California courts.

In his Article, Professor Prince argues that California courts have shown an undue amount of sympathy to claims of unconscionability by merchant-like parties who allege lack of meaningful choice. Additionally, the courts have assessed unconscionability on the basis of hindsight and have approached "price-term" unconscionability cases in a questionable manner, in sharp contrast to the way the doctrine is applied in other states. Professor Prince concludes the Article with a discussion of the lessons to be learned from the improper application of the unconscionability doctrine in California and makes recommendations for a more consistent application of the doctrine.

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