Charles Calleros (Arizona State) – KCON Scholarship Spotlight
The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.
U.S. Unconscionability and Article 1171 of the New French Civil Code: Achieving Balance in Statutory Regulation and Judicial Intervention
(forthcoming in Georgia Journal of International and Comparative Law)
Professor Charles R. Calleros,
Sandra Day O’Connor College of Law, Arizona State University
Perhaps the most notable development in commercial law in 2016 is the revision of contract law in the French Civil Code, the first comprehensive revision since the adoption of the 1804 Napoleonic Code. Perhaps the most notable innovation in that revision is article 1171, which empowers a judge to strike down an ancillary provision of an adhesion contract if it would otherwise create a significant imbalance between the parties.
Compared to the U.S. unconscionability doctrine, article 1171 adds to existing French legislation in a cautious manner and should not spark serious concerns about interference with freedom of contract. Instead, the more interesting questions are (1) whether the French judiciary will sufficiently embrace and exercise the authority afforded it under article 1171 to achieve its limited goals, and (2) whether lawmakers in the United States can overcome the American resistance to legislative and executive intervention sufficiently to emulate French and European control of abusive terms through a combination of legislative, administrative, and judicial regulation.