Section 2-302 of the Uniform Commercial Code is a widely discussed and controversial statement of the law of unconscionability. It was a part of the original UCC as adopted by Pennsylvania in 1953, but some states elected to omit that section when they accepted the UCC. There are three fundamental reasons for their not adopting the section. The first objection is that the section goes against the security of the transaction by allowing the courts to remake parts of the contract. The second stems from the fact that the section limits the parties' freedom to contract because it is often interpreted to allow an inquiry into the fairness of the exchange. The third involves the vagueness of the section due to its lack of definitions or any precise explanation of the concept. All of these objections are legitimate to some extent, but there are other factors which outweigh the negative aspects and make the adoption of section 2-302 advantageous. The law of unconscionability under section 2-302 has expanded greatly in the last ten years and is still developing. The courts today are using the section more readily in settling disputes. This could be due either to a better understanding by the courts of what the section encompasses or to a feeling on the part of the courts that this is the best way to an equitable result in most cases. Whatever the reasons, the law has developed quickly, and it is important to see where the law stands at the present time.
Kevin D. Dolan,
Contracts--Developing Concepts of Unconscionability,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol80/iss1/6