论美国法中的显失公平规则

On Unconscionability in American Law

显失公平是一个无法定义的抽象概念,主要适用于消费者与经营者之间的合同。显失公平规则的制度价值在于对合同自由原则进行修正。其构成要件包括实体性要件和程序性要件,前者指合同或者合同条款对一方当事人过分有利,后者指受损害方无法做出有意义的选择。这两种要件都存在进一步细化的必要。

Unconscionability, which is mainly applicable to contracts between consumers and businessmen, is an abstract concept that cannot be defined accurately. The institutional value of it lies in that it is a tool to revise the principle of freedom of contract. Its constitutive elements include substantive element and procedural element, the former is involved in contracts or articles which are too advantageous to one party, and while the latter refers to that the losing party cannot make meaningful choice. Both elements need to be detailed.