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Competition and Unconscionability
This paper argues that the conventional legal doctrine that emphasizes lack of choice
among suppliers or contracts as an element of unconscionability is misguided. I
show that when a seller with significant market power offers only one contract,
fear of alienating sophisticated customers can discourage the seller from exploiting
the unsophisticated with an inefficient contract. In contrast, competitive sellers may
lose money on sophisticated customers, and be willing to sacrifice them in order to
exploit the unsophisticated. Likewise, offering a choice of contracts enables sellers to
exploit the unsophisticated while offering an efficient contract to the sophisticated.
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