LAW AND EQUITY PRINCIPLES

This essay summarizes, analyzes and critiques legal and equitable principles in their historical context and then examines in commercial contexts three doctrines of equity jurisprudence, unconscionability, promissory estoppel and quasi-contract/unjust enrichment and a specific dispute resolution technique of growing importance which incorporates equitable principles, arbitration. The overall conclusion reached is that the dynamic tension between legal and equitable concepts contributes to the vitality of the American legal process and its fairness for participants in commercial transactions.

Definitions. Law is a system of constraints on the behavior of individuals and groups in society which is sanctioned and enforced by the state. Justice might be defined as that system of law which satisfies most people's sense of fairness. Black's Law Dictionary uses in part a definition of law which is close to the above: "that which must be obeyed and followed by citizens, subject to sanctions or legal consequences" and "the constant and perpetual disposition to render every man his due" (at 1028 and 1002, 4th ed. (1951)). It can be readily be seen from these definitions that it is much easier to define the law than justice. Legal realists like the late Supreme Court Justice Oliver Wendell Holmes have said that the law is simply what the courts say it is, but his formulation begs the question of what it ought to be. Most legal scholars agr

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as to 'shock the conscience.' Under sec. 2-302 of the Uniform Commercial Code, a court may as a matter of law find any commercial contract or part thereof void on grounds of unconscionability. The UCC does not define the term unconscionability but states that the court should afford the parties in case it is claimed an opportunity at a hearing to present evidence "as to its commercial setting, purpose and effect." The case law indicates that the determination as to unconscionability is to be made at the time of contracting. In their review of the case law under sec. 2-302, Hillman et al found that decisions finding unconscionability involve two types: serious deficiencies in the initial bargaining process or 'bargaining naughtiness,' and substantive gross unfairness. (Robert A. Hillman Julian B. McDonnell Steve H. Nickles, Common Law and Equity Under the Uniform Commercial Code 6-7 (1985). A good example of the former is Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965). In that case, a corporate seller handed a printed form contract with a harsh and one-sided product return provision to an ill-educated person who was not represented by a lawyer and who probably never understood what she signed. Such con

Category: Government - L