Numărul 4 / 2013

In memoriam Mircea Mureşan

LESION AND ITS FUNCTIONAL EQUIVALENTS. A GLANCE AT FRANCE, QUÉBEC, LOUISIANA AND THE UNITED STATES COMMON LAW[1]

Adrian TAMBA*

Abstract: The current work is dedicated to lesion and beings that are its functional equivalents. The study encompasses no less than five parts. The Introductory Speech is followed by a Part that presents the French, Québécois, and Louisianian lesions; the three entities are also compared. Some remarks on lesion’s foundation and the concepts that explain it are contained in the same Part. The third Part looks at unconscionability and places it face to face with lesion. Part IV embraces lesion’s other functional equivalents. The fifth and last Part includes the Final Observations.

            Part I. Introductory Speech

            1. Aim of the current research project. The protection of consent (when the latter is affected by some "malady") and the absence of balance at the time a contract is made represent a phenomenon to which France, Québec, Louisiana, and the Common Law of the United States are not insensitive.

            The backbone or the thesis of this work may be summarized as follows: France, Québec, Louisiana, and the Common Law of the United States contain legal techniques that protect consent (or, if at times they do not, nonetheless they ought to care for it); these legal techniques, usually, are concerned with the problem of a "diseased" consent, and the primordial contractual imbalance. Furthermore, the following aspect must not escape us: in the context of these legal techniques (e.g., lesion), at the surface, one sees only the initial conventional imbalance, but, if one goes deeper, usually there is also a "sickness" of consent.

            Of course, one must not forget the following aspect: in the enumerated legal systems, there is a clash between two opposing forces that have distinct desires; the common law lawyer might see this in the form of "Force 1 v. Force 2". The first force is represented by legal techniques (e.g., lesion and unconscionability) based on ideas such as commutative justice, or morality; these legal techniques, as commanded by the concepts underlying them, desire[2] to fight the initial conventional imbalance by placing their hands on the contract and touching it (this touch may be a rather gentle one, leading to the alteration of the contract, but letting it live; the touch might be a brutal one, or a strong grip that chokes the convention to a retroactive death or to a ex nunc death). The second force is freedom of contracts, or security, or stability of conventions; this force desires that the contract is left untouched. France, Québec, Louisiana, and the Common Law of the United States seem to favor the second force. Thus, the legal techniques that are the first force and the concepts serving as their foundation, usually, kneel before freedom of contracts.[3] However, sometimes, more or less rare, the first force and the concepts on which it stands have their day.  

            Of course, some readers might pose at least a few questions. Specifically, I could be interrogated as to why I talked about "legal techniques that protect consent (or, if at times they do not, nonetheless they ought to care for it)"? Why did I use the word "usually" within the final part of my thesis? What do I mean by "legal techniques that at times do not protect consent, but nevertheless, they ought to do so"? My answer is this: in regard to unconscionability,[4] the Québécois lesion,[5] the Louisianian lesion,[6] and even in relation to some of the French lesion,[7] one might talk about protection of consent. The trouble is represented by the French lesion that occurs in the case of persons of full age (for details see infra nos 6 and 10). This type of lesion is seen through the eyes of the objective conception, and, as such, it has nothing to do with consent.[8] The French Court of Cassation said the following: "il importe peu que les parties aient donné leur adhesion en pleine connaissance de cause, la lésion constituant en soi une cause de rescision, indépendamment de tout vice de consentement" (it is less important that the parties were fully aware when they expressed their adhesion, because lesion is by itself a motive of rescission, independently of any vice of consent).[9] This would mean that this type of lesion appears even if the parties were fully aware of everything; that is, it appears even though there was nothing wrong with consent. Lesion, in the objective conception, does not concern itself with consent, but this type of lesion is a perversion (infra. no 10). Lesion ought to always protect consent, as it will be discussed below (infra no 10); as such, I have formulated a thesis that accepts that lesion protects consent (in general), and when it actually does not do so, it ought to protect consent.

             I have already mentioned that lesion is a legal mechanism or doctrine designed to fight the initial contractual imbalance between advantages; of course, the protection of consent may be seen as part of lesion's function; in the end, lesion's function may be seen as a complex one (infra no 2). Where lesion is absent (either completely, as it happens in the U.S., or only in regard to some contracts[10]), the legal systems do contain some functional equivalents to lesion. It is worthwhile to add that the comparatist in search for functional equivalents requires imagination.[11] That means that the scholar must adopt a broad view that allows him to understand how mechanisms, apparently made for accomplishing one task, have in reality the power to also perform another one. Furthermore, the comparatist "... should go as deep as possible into his chosen systems".[12] As such, the search for functional equivalents to lesion will take me into various fields of the law (e.g., contracts, where one can find the vices of consent; real securities, where one may notice lex commissoria). Perhaps walking in these areas of the law will give the impression that I am present in many places, but being in those places seems to be commanded by the need to go deep into the elected systems, that is, by the desire to be thorough. 

            From the very beginning at least one aspect must be grasped by the reader. These functional equivalents may be used to protect the "diseased" consent and attack the imbalance that exists when the contract is made. However, it does not mean that their primary function is to protect the "tainted" consent and battle the lack of equilibrium; their primary function might be a different one, and only their secondary function might serve to protect the "sick" consent and fight against the primordial contractual disequilibrium. This would mean that some mechanisms are lesion's functional equivalents from the perspective of the former's secondary function (see, e.g., infra no 22).

            Finally, when I have indicated the thesis of this paper, I used the expression "legal techniques" before mentioning concepts such as "consent". I did so because technique will be privileged. The current study will embrace a "technical"perspective: my attention will be focused on the nature, scope, requisites, and the remedies connected to the legal mechanisms that shall be discussed. Be that as it may, the concepts that justify the existence of these legal mechanisms will not escape the analysis. A paragraph to be found below (infra. no 10) will bring into the light the ideas that serve as lesion's foundation; furthermore, the very same paragraph shall encompass a few remarks on the tension between, on one hand, lesion and the concepts underlying it, and, on the other hand, freedom of contracts. Paragraph no 10 will contain some remarks on how the law of lesion is (at times) and on how it ought to be.

            2. Lesion – definition and function. One of the points of departure of a work called “Lesion and its Functional Equivalents. A Glance at France, Québec, Louisiana and the United States Common Law” will naturally be represented by an indication of the meaning of the institution under consideration.

            Lesion was given the following signification: damage suffered by one party, in the context of a contract or of a partition, because of the primordial inequality between the reciprocal obligations or lots.[13] Briefly, the being under analysis involves a certain disproportion between the parties’ reciprocal obligations.[14] The imbalance is one that shows itself at the time the contract is forged. The instant this creature is observed certain remedies are provided: relative nullity, damages, the reduction of obligations or a supplement (infra., Part II). The trouble is that acceptance of lesion encroaches on other worthy values, such as the freedom of conventions and the stability of contracts or security of transactions. To put it in other words, one must be aware of the collision between two “treasures”: (i) the fight against the colossal imbalance that exists when the contract is made and (ii) the freedom and stability or safety of contracts. It seems obvious that if lesion and its remedies are embraced, the contract is affected. Fouillée’s expression, “Qui dit contractuel, dit juste”,[15] receives a fatal blow, because the very presence of lesion indicates exactly the contrary: Qui dit contractuel, ne dit pas juste (i.e., who says contractual, does not say just). Also, lesion generates contractual instability or insecurity (the convention can be assassinated by nullity or it may be given another shape through the mechanism of reduction or supplement). As we shall see (infra. Part II), the various legal systems are aware of this delicate aspect.

            My endeavor has the ambition of being a comparative study. As such, one must not limit his research to an equivalent institution,[16] that is, an institution that resembles lesion. Instead, the comparatist is to ask himself what is the function of the juridical creature he aims at, what is the problem it wants to take care of?[17] Lesion is concerned or ought to be concerned with the "disease" of consent and it is always concerned with the disequilibrium in conventions. Indeed, this is lesion’s complex function (i.e., usually, it fights the "sickness" of consent, and always struggles with the initial contractual imbalance). When emphasis is placed upon the function of an institution, as I have done, one talks about the functional method.[18]

            3. Brief remarks on the method this study will be sensitive to – equivalence functionalism. The methods that a comparative study can deploy are not few.[19] However, “today, we understand that when we compare rules, we must take a functional approach …”.[20] Furthermore, “the basic methodological principle of all comparative law is that of functionality”.[21] The only things that are comparable are the ones which fulfill the same function.[22] Functionalism[23] is problem-oriented[24], and this means that “... in comparative law one must focus on the concrete problem”.[25] It should be kept in mind that the problem must be posed in purely functional terms, without reference to national concepts.[26] The comparatist is bound to purge himself of his native legal concepts and discover the functional equivalents within the compared legal systems. He will look beyond the legal devices, because it is possible that the function fulfilled in one system by a legal rule is accomplished somewhere else by an extralegal phenomenon.[27] The functionalist is mindful of the social, economic and political context.[28]

            The essence of functionalism is this: there are similar problems that are solved by different mechanisms in such a manner that the results are the same.[29] These mechanisms are functionally equivalent; their function is to address the same issue and achieve a like solution, which, in the end, is reached.

            Though there are authors who believe that the functional method is not beyond criticism,[30] it is, nevertheless, the approach to which this paper will remain faithful. It is undeniable that some of the most influential studies that compared civil law and common law institutions used the equivalence functionalism.[31] First, my paper is destined to compare institutions belonging to the civilian and common law traditions. Second, since institutions are the elements under comparison, and not entire legal systems, it is a paper that fits in the category of micro-comparisons.[32] Equivalence functionalism[33] seems to be a choice superior to any other.

            4. The choice of legal systems in which to look for functionally equivalents. The structure of the current work. The systems that I have chosen are France, Québec, Louisiana, and the common law states of the U.S. I believe that this choice illustrates what Zweigert[34] called “une sage limitation” (a wise limitation). I chose to limit my research to the enumerated legal systems for two reasons. The first is represented by linguistics: I can understand the languages used in these jurisdictions. The second consists of my training: the listed legal environments are familiar to me.      

            Besides the present introductory part, this work will include no less than four other parts. Part II will be titled “Lesion – A French, Québécois and Louisianian Spectre”; this second section will be mainly a descriptive one; only its paragraph 10 shall contain a deep and critical analysis. Part III will be known as “Uconscionability and Lesion Compared”. Part IV, named “Lesion and other Functional Equivalents”, will be a search for doctrines[35] that, among other functions, also try to take care of the same issue as lesion does. The last part (i.e., V) will encompass the “Final Observations”.

            Zweigert and Kötz advise us that the “… the process of comparison proper starts only when the reports on the different legal systems have been completed. To present such reports before the comparison proper begins is an established method of research and a proven way of constructing works on comparative law. Separate reports should be offered for each legal system …”.[36] Reimann appears to agree with Zweigert and Kötz when he says that “knowledge of foreign law is an indispensable prerequisite to explicit comparison …”.[37]

            On the other hand, one author does not seem to approve of such a structure; he sees it as “simplistic, ineffective, and inefficient”.[38] He urges the comparatist to “make every section comparative”.[39]

            As far as I am concerned, generally, I will make every section (i.e., Part) comparative. It must be noted, nevertheless, that juxtaposition is necessary before comparison.[40] That is why within each Part, before advancing to the actual comparison, the status of every legal system will be indicated.

            Part II. Lesion – A French, Québécois and Louisianian Spectre

            5. Lesion – definition revisited, possible conceptions, and a locution on its domain. One can observe above (supra no 2) the understanding of lesion provided by the dictionary coordinated by Cornu. In all truth, there are different, not to say better, ways to define the spectre. The word lesion describes the damage suffered by one party because of the imbalance that exists between prestations at the moment the contract was made.[41] This way at looking at the entity seems better, simply because it does not mention the word “partition”; there is no need to indicate it, since partition is a convention,[42] and when one says “contract” it also encompasses it.

            The French doctrine believes that there are two possible conceptions of lesion: a subjective and an objective one;[43] according to the former, lesion is a vice of consent,[44] whereas the latter indicates that the being has nothing to do with consent.[45] The Louisiana legal literature also mentions the subjective and objective conceptions.[46] Some Québécois authors talk about three conceptions: (i) the objective one; (ii) the classic subjective view; and (iii) the contemporary subjective perspective;[47] perhaps, in regard to the latter legal system, these conceptions may be classified in two broad categories: the objective conception and the subjective perspective (this last one may encompass two sub-categories: the classic subjective view, and the contemporary subjective one); briefly, even in Québec, the conceptions on lesion may be limited to two.

            Lesion’s definition indicates that it is favorable to synallagmatic, onerous, and commutative contracts;[48] these are the types of conventions for which the technique of lesion is fitted.[49] That is why, some legislative provisions that talk about lesion (e.g., the Québec Civil Code art. 2332) are questionable; one is in the impossibility to notice it if the convention does not have the characteristics enumerated in the prior phrase. However, such mechanisms (e.g., usury) can be seen as lesion’s functional equivalents: they aim at rejecting a sort of imbalance that exists when the convention is fabricated.

            6. Lesion – a French creature. Within the French Civil Code,[50] lesion can be found especially at arts. 1118, 1305, 1313, 889 and 1674-1685. The first text indicates when lesion may be claimed. Art. 1305, in referring to non-emancipated minors, shows that this category of persons may claim lesion in all types of contracts. Art. 1313 illustrates the following idea: persons of full age are unable to invoke lesion, except in the cases permitted by legislation. Arts. 889 and 1674-1685 discuss lesion when two contracts are involved: partition, and sale of immovables. 

            There are at least three views in the French doctrine regarding the juridical nature of lesion.

            Dean Carbonnier tells us that art. 1118 follows the texts that treat of error, fraud and duress.[51] As such, it is only natural to assume that, in the eyes of the legislator, lesion is a vice of consent.[52] The institution can be considered a distinct vice, or it is possible to analyze it as an element that generates a presumption that one of the other three vices is present (for instance, if one contractual partner suffers a damage, he committed an error on the value of the prestations, or he acted under a state of fear).[53] However, the author immediately adds that such an analysis is not completely mindful of the role played by lesion.[54] In the case of persons of full age, lesion is not to be seen as a defect of consent, but rather as an objective element.[55] On the other hand, if a contract is made by a minor or a person of full age under protection (e.g., a person under curatorship), then lesion shows itself from a subjective standpoint.[56] Under such circumstances the person is weak, and it can be believed that he was subjected to exploitation. To summarize, Carbonnier teaches us that the French lesion is sometimes an objective vice, and other times it is a vice of consent.

            Malaurie and Aynès preach that lesion is most definitely not a vice of consent.[57] When it appears, one contractual party made a bad deal, whereas the other made a good one.[58] This state of things is not seen as a reason for disturbing the security of conventions.[59] In sum, these two authors seem to take an objective approach to lesion.

            Finally, Christian Larroumet announces that the French Civil Code embraced the subjective conception in regard to lesion.[60] In the situation of minors and protected persons of full age, the legislator presumes the weakness of their consent.[61] As much as the rest of persons of full age are concerned, lesion is accepted rarely; nonetheless, when it is allowed, this type of persons is under a necessity to make the contract;[62] as such, one might think that the person of full age was exploited by his contractual partner who took advantage of that state of affairs.[63] Indeed, this scholar reckons that, as a rule, the French Civil Code wanted to build lesion as a vice of consent.

            The French jurisprudence is inclined to adopt the objective conception, and, as such, rejects the idea that lesion is a vice of consent.[64] Larroumet believes that by doing so, the judges do not encircle the legislature’s position.[65]

            The scope of the French lesion, apparently, is not a broad one. “La lésion ne vicie les conventions que dans certains contrats ou à l'égard de certaines personnes ...” (lesion does not vitiate conventions, except in regard to certain contracts or certain persons) (F.C.C. art. 1118). Thus, lesion is accepted only in regard to certain persons or in relation to some contracts. The minor can claim lesion every single time he makes an unfavorable act of administration[66] (such as a lease).[67] Equally, a person of full age placed under protection (e.g., curatorship[68]) can claim lesion when he makes an act of administration;[69] on the other hand, it must be noted that some juridical acts in which such a person is engaged will be struck down on grounds of incapacity;[70] when that happens there does not seem to be any point in talking about lesion.

            Persons of full age who enjoy contractual capacity are able to yell “lesion” only in rare instances (F.C.C. art. 1313). First, the convention must be synallagmatic, onerous and commutative.[71] However, not all agreements that have such characteristics are opened to lesion.[72] Generally, in regard to this kind of persons, the principles of autonomy of will and security of agreements will prevail over the exigencies promoted by the idea of commutative justice.[73] Nonetheless, in particular cases, the latter[74] was allowed to manifest itself. The French Civil Code tolerates lesion in two situations:[75] sale of an immovable (F.C.C. arts. 1674-1685) and partition (F.C.C. art. 889). In the former contract, only the seller can claim lesion, and a disproportion of more than 7/12 is necessary; in this case, the price received by the vendor must be inferior by more than 7/12. Historical reasons explain why the seller is the only one protected and why solely the sale of immovables is envisaged.[76] Roman law made way for lesion in such a sale, due to a constitution of Emperor Diocletian, though a disproportion of ½ was sufficient;[77] also, L’Ancien Droit was sensitive to a lesion of ½ suffered by the vendor.[78] The contract of partition is also subjected to lesion, if one of the parties receives a lot inferior to the one he should collect; the disproportion here has an amount of more than ¼ (F.C.C. art. 889).[79] One who asks himself why lesion must be tolerated in a partition could be satisfied by the following answer: equality is the soul of such a contract;[80] thus, the imbalance must be erased.

Outside the Civil Code, there are a few normative acts that are not repugnant to lesion: (i) art. 1 of a law that dates back in 1907;[81] (ii) the Code of Intellectual Property art. L131-5;[82] the authors[83] also enumerate arts. 10, 15 and 16 of Law no. 67-545,[84] but it seems that today the relevant text is art. L5132-6 2° of the Code of Transports.[85]

            French lesion, especially when it involves contracts between persons of full age, supposes one requisite: the disproportion indicated by law[86] (e.g., 7/12 or 1/4).

            The legal system under analysis provides a few remedies when lesion is observed: relative nullity (or, as it is also called, rescission), damages, and reduction of obligations. Minors will obtain primarily the rescission of the contract (F.C.C. art. 1305). Persons of full age under protection (e.g., curatorship) have the possibility to invoke relative nullity or reduction of their obligations (F.C.C. art. 465 1°). Finally, those who are of full age and not subjected to a measure of protection have, depending on the contract, a few variants: (i) rescission in case of a sale of immovables (F.C.C. art. 1674), but the buyer can save the contract by offering a supplement in money (F.C.C. art. 1681);[87] (ii) in case of a contract of sale regarding fertilizers, seeds, plants or substances destined for farm animals, the buyer can obtain the reduction of his obligations and damages (art. 1 of the law of July 8, 1907); (iii) nullity or modification of the contract of maritime assistance (Code of Transports art. L5132-6); (iv) the revision of the price, when the contract is an assignment of the right to exploit an intellectual creation (Code of Intellectual Property art. L131-5). Under F.C.C. art. 889 it seems that the only remedy available to a party who was affected by lesion in a contract of partition is a supplement (i.e., increase of his lot).[88]

            7. Lesion - a Québécois being. Articles 1399 (2), 1405-1408, 424,[89] 472,[90] and 2332[91] of the Québec Civil Code[92] are the main texts preoccupied with lesion.[93] The first of the enumerated clauses ranges lesion among vices of consent. The legal literature, nonetheless, observed that probably the Code proceeds in such a manner by reasons of commodity;[94] lesion is not a vice of consent in the traditional sense of the term,[95] but it became a reflection of commutative justice;[96] furthermore, we are told that lesion remains connected to the contractual will and it reflects the idea that the “lesionary” agreement was made by a person whose consent presented some problems.[97] On the other hand, there is another view, which is clearer and less tainted by confusion: lesion is a vice of consent separate from the other three.[98]

            Lesion has a limited[99] domain of application, because, as a rule, it appears when a juridical act was made by a minor or by a person of full age under protection (art. 1405).[100] In regard to other persons who have achieved the age of majority, lesion is accepted only in situations expressly indicated by the law (art. 1405, first thesis). As one court put it, lesion can be invoked only in exceptional cases.[101] Briefly, like arts. 1001 and 1012 of the Civil Code of Lower Canada (1866), the Q.C.C. maintains the principle that lesion cannot be usually claimed;[102] at least, not by persons who are of full age. Be that as it may, one question is beyond avoidance: why is lesion an entity with a narrow scope? Pineau, Burman and Gaudet indicate that, for many, the explanation resides in contractual liberty and in the necessary security of transactions.[103] Nonetheless, Pineau et al. do not find this justification as being convincing.[104] First, freedom of contract and security of agreements are not boundless.[105] Second, they observe that in Germany (§138 (2) BGB (i.e., the German Civil Code)) and Switzerland (Code of Obligations art. 21)[106] lesion is extended to persons of full age; even so, in these countries there is no instability of conventions.[107] Those authors conclude that the Québécois legislator should have accepted a general principle of lesion.[108] Instead, the lawmaker proceeded as in 1866: minors and protected persons of full age are solely envisaged; the regular persons of full age can complain of lesion in cases expressly indicated by law.[109]

            Art. 1406 (1) Q.C.C. states that “lesion results from the exploitation of one of the parties by the other, which creates a serious disproportion between the prestations of the parties; the fact that there is a serious disproportion creates a presumption of exploitation” (Q.C.C art. 1406 (1)).[110] Some authors preach that the description can be taken into account only exceptionally,[111] because it is applicable only when persons of full age are involved;[112] lesion was given a delineation at the insistence of the legal professions. The Bar of Québec was complaining that the Q.C.C. offered no definition for lesion.[113] It was the same Bar that, together with other professional associations, desired and obtained the rejection of a general principle of lesion.[114]

The second paragraph of art. 1406 underlines that “in cases involving a minor or a protected person of full age, lesion may also result from an obligation that is considered to be excessive in view of the patrimonial situation of the person, the advantages he gains from the contract and the general circumstances”. Commenting upon art. 1406 (2), the authors emphasize that lesion, as indicated by this paragraph, rests on the same idea as the one underlined by the first paragraph: exploitation of one party by the other.[115] Both types of lesion have the same roots.[116] If that is the case, I wonder why do Pineau et alii indicate that the definition at paragraph 1 of art. 1406 aims essentially at persons of full age? The moment one looks at their words, contained in the following pages, he understands that the second paragraph of art. 1406 is nothing but a manifestation of the definition indicated by the first paragraph of the same article. Briefly, art. 1406 (1) applies also to minors and persons of full age under protection, but with some souplesse; that is suggested by the same authors who claim that the text is targeted only at persons of full age. As such, a certain lack of harmony in the analysis of Pineau et alii is hard to miss.

            Art. 1406 puts into the light the two elements of the Québécois lesion: (i) exploitation of one party by the other[117] and (ii) the disproportion between performances. In regard to persons of full age it is not easy to find examples of lesion in the Q.C.C. The texts that purport to accept it are technically debatable; it is so for arts. 424 and 472 (which establish situations of renunciations at rights, and are completely incompatible with art. 1406 (1));[118] on the other hand, art. 2332 is more appropriate for the doctrine of usury, than for that of lesion. Nonetheless, outside the code, one encounters arts. 8-9 of the Law on Consumer’s Protection.[119] The texts give life to lesion in favor of a person of full age who is a consumer. Of course, two pre-requisites must be met: (i) disproportion between obligations and (ii) exploitation of the consumer. In one case,[120] though there was disproportion in a contract of exchange, the court found that the consumer was not exploited by the professional; as such, the consumer’s claim was rejected.

            For minors and persons of full age under protection the same pre-requisites are necessary: (i) exploitation and (ii) disproportion.[121] Before discussing these two elements, it must be understood that things are quite delicate in their situation. Often, there is no need for lesion, since those categories of persons can obtain the destruction of the contract on grounds of incapacity. For instance, if the minor sells an immovable he can obtain the nullity by pointing out his incapacity,[122] without any necessity to discuss lesion (that is, to show that the price was too low). Similarly, a person of full age under curatorship can claim nullity by reasons of incapacity, regardless of lesion (Q.C.C. art. 283).[123] There are, of course, instances when these two types of natural persons may claim lesion. The being’s demands are analyzed more gently in such cases. Minors and protected persons of full age (e.g., persons of full age under tutorship or curatorship) are in a weak state generated by their condition itself (that is, by their minority, respectively their mental shape or other troubles);[124] they are always susceptible of being exploited. Q.C.C. art. 157 states that a minor can enter alone into a contract to meet his ordinary and usual needs. Thus, a minor who buys a scooter in order to travel[125] is within the terms of art. 157. Let us assume that another youngster buys similar means of traveling for the very same purpose. He agrees to pay a just price for it. However, his patrimonial situation is a disastrous one, and, in fact, he cannot afford the scooter. In this hypothetical he may not claim nullity for reasons of incapacity, because he can make the agreement (see Q.C.C. art. 157). Nevertheless, he is able to invoke lesion, because, in regard to his patrimony, there is an imbalance. In this sense, the requirement represented by disproportion is tempered: usually, one is not allowed to observe a lack of equilibrium when the amounts of obligations match; things are different when a minor or a person of full age under protection is involved (under circumstances such as these, the idea of disproportion is indulgently analyzed).

            Québec provides certain remedies when lesion is encountered: relative nullity, damages or the reduction of the obligation (Q.C.C. art. 1407); relative nullity and damages can form a couple.[126] The victim has the choice between these various options.[127] However, if the victim elects nullity, the contractual partner can very well avoid it,[128] by offering a reduction of his personal right[129] or an equitable pecuniary supplement (art. 1408). The rule contained in art. 1408 is novel[130] and it is meant to favor the stability of contracts.[131] Another attempt to encourage the survival of the contractual relationship is art. 1407 in fine: if lesion’s victim prefers that the contract be maintained, he can apply for a reduction of his obligation equivalent to the damages he would be justified in claiming.[132]

            8. Lesion – a Louisianian entity. Arts. 1965, 814, 2589-2600, and 2663 of the Louisiana Civil Code deal with lesion.[133] Art. 1965 is of great importance, because it shows when lesion can be invoked, and its place in the Code also offers some indicia on lesion’s nature; as such, this text is to be mentioned first when one discusses lesion. Art. 814 underlines that a contract of partition may be rescinded on grounds of lesion. Arts. 2589-2600 open the avenue for lesion in a contract of sale of immovables. Art. 2663 informs us that a contract of exchange that involves a corporeal immovable may also be targeted by lesion.

            Professor Litvinoff underlined that the Louisiana courts have always preferred to treat lesion in an objective fashion.[134] Is this statement acceptable? At least one decision suggests a negative answer; a court has ranged lesion among vices of consent,[135] and that appears to be consistent with Louisiana Civil Code[136] art. 1965.[137] The moment one says that lesion is a vice of consent, any trace of the objective conception must be set aside (perhaps his inability to understand this is what makes Litvinoff claim that Louisianian courts embraced the objective view on lesion); according to this approach, lesion has nothing to do with a defect of consent.[138] Be that as it may, Litvinoff teaches us that, in Louisiana, in spite of its place in the code, lesion differs from the three traditional vices of consent, and is connected to public policy.[139] To me, that sounds like a plea in favor of the idea that lesion is something else than a vice of consent.

            In Louisiana, lesion’s scope is a restricted one.[140] The entity spreads to a few contracts and to a limited number of persons;[141] it seems that the 1984 revision has not changed the law of lesion in a significant manner.[142] Nonetheless, the lack of appreciable change does not mean the absence of any modification. La. Civ. C. art. 1864 (1870) provided that minors can claim simple lesion in every species of contract.[143] However, this text and others that were referring to lesion in the case of minors were eliminated by the 1984 revision;[144] La. Civ. C. art. 1866 (1870) provided that minors do not need to claim lesion, since they are able to invoke their incapacity, and, as such, the texts on lesion seemed redundant.[145] Today, minors can simply avail themselves of their incapacity (La. Civ. C. arts. 1918-1919); the presence of lesion is not necessary in their case. The same seems to be true for interdicts, if we keep in mind the adage Ubi lex non distinguit, nec nos distinguere debemus, when we read La. Civ. C. art. 1919.

            Louisiana accepts lesion in three situations, all of them involving persons of full age and not placed under protection: (i) sale of immovables; (ii) exchange, when an immovable is involved; and (iii) partition.

            La. Civ. C. art. 2589 opens the avenue to lesion in a contract of sale of corporeal immovables. Only the seller of such an immovable[146] can claim lesion, because it was believed that need may force a person to sell, but never to buy;[147] thus, the buyer’s complaints are not to be heard.[148] The disproportion between the value of the immovable and the price must have an amount of more than ½; that is, the price is inferior to more than ½ of the value of the immovable (La. Civ. C. art. 2589). The worth of the immovable is its fair market value[149] at the time the sale was made.[150]

            The contract of exchange is also subjected to lesion (La. Civ. C. art. 2663).[151] Similar to a contract of sale, the disproportion between the value of the immovable and the thing obtained in return must be of more than ½. To put it differently, the contractual partner transfers an immovable and he receives property worth less than ½ of the value of the immovable.[152] Furthermore, the convention of exchange is governed by the rules of sales (La. Civ. C. art. 2664);[153] as such, the value of the immovable exchanged must be analyzed at the moment the contract was made.

            An extra-judicial partition (i.e., contract of partition[154]) may be rescinded on account of lesion, if there is a disproportion of ¼; in other words, the part received by a co-owner is less by more than ¼ of the fair market value of the portion he should have gotten (La. Civ. C. art. 814). The explanation for accepting lesion in this type of convention is this: partition is an “acte égalitaire”;[155] thus, every contractual partner must receive what is due to him, and no less.[156] In the context of this contract, lesion is established by looking at the value of the thing at the moment the convention was made.[157]

            According to the texts of the La. Civ. C., lesion’s imperative requisite is this: the mathematical imbalance indicated by the law;[158] that is, ¼ in the case of an extra-judicial partition (La. Civ. C. art. 814), and ½, if the contract under consideration is a sale of immovables (La. Civ. C. art. 2589) or an exchange (La. Civ. C. art. 2663).

            When lesion is shown there are a few remedies at hand: (i) rescission[159] is the one primarily mentioned by the texts (La. Civ. C. arts. 814, 2589 and 2663); (ii) in case of a sale, the buyer has the possibility to avoid the death of the contract by offering a supplement (La. Civ. C. art. 2591).[160] This supplement could be seen as another tool that materializes when lesion is detected; there is no good reason for not accepting it when an exchange is involved; La. Civ. C. art. 2664 invites us to embrace it. La. Civ. C. art. 2591 could be applied mutatis mutandis to a contract of exchange: let us assume that A gives to B a tract of land that is worth $500,000, and the former receives a Mercedes that has a value of $230,000. What in the world would stand in the way of B’s possibility to save the convention by paying $270,000 to A (i.e., the difference between the value of the Mercedes and that of the immovable)?

            9. French, Québécois and Louisianian lesions compared. The nature of lesion can be characterized as controversial in these three legal systems; one could believe that in regard to this issue, the three legal systems present similarities, in the sense that controversy is felt in all of them. The French authors are divided on the subject. There seem to be two extremes and a midway. For some, lesion is a vice of consent,[161] whereas for others it is not such a vice.[162] Carbonnier takes the middle ground: the entity is a vice of consent when a minor or a person of full age under protection is involved,[163] and it is an objective element when it is recognized in favor of a person of legal age.[164] The French jurisprudence regards lesion as an objective entity, at least when persons of full age claim it.[165]

In Québec, there are scholars who underline that lesion is a vice of consent, distinct of the other three (error, fraud and duress);[166] however, the same authors add that both the subjective and objective conceptions were avoided.[167] The two statements might appear quite strange and contradictory to a French jurist, because the instant lesion is seen as a vice of consent, it must be admitted that the subjective approach prevails.[168] As far as the Québécois legislator was concerned, one might be tempted to think that its preference was expressed in the sense that lesion is a vice of consent; Q.C.C. art. 1399 (2) states that “it [consent] may be vitiated by error, fear or lesion”.

Louisianian lesion is more akin to public policy, according to the legal literature;[169] it would seem that the being is not connected to vices of consent, despite of what the argument pro subiecta materia would suggest. On the other hand, there are some court decisions that clearly link lesion to consent.[170]

            Regardless of this curious state of things, all the legal systems under analysis point out the limited field of lesion:[171] only certain persons can claim lesion, and but some contracts are affected by it. Persons of full age who are not under protection are allowed to invoke lesion in some juridical acts: (i) sale of immovables and partition (France and Louisiana; when the former contract is taken into consideration, it must be noted that there are differences between the amount of the disproportion; see supra. nos 6 and 8); (ii) exchange (Louisiana); (iii) some types of renunciations (Québec), though the solution is technically doubtful (supra. no 7); (iv) sale of agricultural fertilizers, seeds, plants, and substances destined to feed farm animals (France); (v) assignment of the rights to exploit an intellectual creation (France); (vi) contract of maritime assistance (France); (vii) contracts between professionals and consumers (Québec); (viii) loan of money (Québec), a solution which raises doubts (supra. no 7). In regard to minors and persons of legal age under protection, there is a curious interplay between lesion and capacity; it is so, at least in France and Québec. To take only the situation of minors, sometimes they do not need lesion, because their incapacity is sufficient to destroy the contract.[172] In Louisiana, it seems that persons who do not enjoy full capacity may use its lack in order to set aside the juridical act; lesion is excluded.[173]

            Lesion’s requisites seem to vary within the legal systems that are placed under the magnifying glass; in reality, this is not of major consequence in regard to what the victim of lesion must prove. Let us take the example of persons of full age. In France the only requirement is the disproportion established by law (e.g., more than 7/12). In Québec the pre-requisites are the exploitation and the disproportion (it seems that in this legal system the law does not indicate the amount of imbalance, as it happens in France and Louisiana; the mathematical disproportion must be “important”). In regard to Louisiana, one must proceed with caution: according to Litvinoff, lesion is an objective[174] aspect, and disproportion is its only element; some decisions[175] link it to consent, and disproportion must be accompanied by an error.

All these legal systems require from the persons who are complaining of lesion to prove one thing: the disproportion (indicated by the law, respectively the important imbalance). In France the accuracy of the statement is obvious: lesion’s only requirement is the disproportion;[176] it follows that the burden of proof is limited to it. In Québec, one must show the important disproportion, and the law does the rest: it presumes the exploitation (Q.C.C. art. 1406).[177] As to Louisiana, “the only issue of fact to be determined ...” is the imbalance.[178]

            France, Québec, and Louisiana offer a few remedies in case of lesion. Rescission or relative nullity is one of them (supra. nos 6-8).[179] In Québec, sometimes, the former remedy forms a couple with damages (supra. no 7). Another remedy, common to all three jurisdictions, is the supplement (see e.g. F.C.C. art. 1681; Q.C.C. art. 1408; La. Civ. C. art. 2591). Reduction of the obligations is the cure allowed especially in France and Québec (supra. nos 6-7). In regard to France, reduction of obligations and damages may hold hands (supra. no 6). One is permitted to classify these remedies in two broad categories: (i) remedies that destroy the contract (rescission); (ii) cures that allow the contract to survive, in an altered form (supplement and reduction of the obligations). The latter category might very well receive the following name: alteration of the contract.

            10. Lesion's foundation and concepts that might serve to explain it. Lesion and consent. Some believe that lesion is a reflection of commutative justice.[180] Furthermore, there is a conviction that lesion’s foundation is to be found in morality.[181]

            Before indicating the tension between commutative justice and freedom of contracts, respectively the preference of the F.C.C., Q.C.C. and the La. Civ. C. for the latter, it is desirable to briefly discuss such concepts as commutative justice and morality. 

            Commutative justice (which appears synonymous to corrective or reparatory justice)[182] directly concerns the law of contracts.[183] This type of justice can be traced to Aristotle's Nicomachean Ethics and consists in establishing balance between two persons.[184] We are indeed in the presence of an arithmetic justice,[185] the aim being to assure, as much as possible, a mathematical equality.[186]

            Morality, on the other hand, is that concept which characterizes the individual behavior or the behavior of society in terms of right or wrong;[187] the former can be called individual morality, whereas the latter is public morality.[188] Of course, lesion should be looked at through the eyes of individual morality, because it appears in contracts, that is, in a context where the wills of individuals tend to unite.

            Commutative justice and morality can be seen as concepts that are interpenetrated (in the sense that the equality desired by commutative justice is also demanded by morality; equality is right);[189] as such, both of them are in the same place: at the basis of lesion.

            However, commutative justice, and, in the end, lesion (which is based on this kind of justice) encounters a foe:[190] freedom of contracts,[191] or security, or stability of conventions. Freedom of contracts means, among others, that the parties are free to determine the content of their convention;[192] the contractual partners may establish what their obligations are.[193] Freedom of contracts, their security and stability impose the following idea: the convention, fruit of the united wills of the contractual partners, must not be tempered with, must not be touched or altered.

            Thus, one may see the tension between lesion and freedom of contracts: the former (predicated on commutative justice) wishes equality and the alteration of the imbalanced contract; the latter desires that the convention remains as it was settled, regardless of everything else.

            Which one of these two forces was preferred within the analyzed legal systems? Prior to answering the question, though the response was anticipated above, it must be said that "the value of consent may be advanced under the banner of freedom of contract at the expense of substantive equality ...".[194] To put it in other words, freedom of contract may be privileged in comparison to equality. However, "other times equitable contract values will work to restrict unfettered freedom of contract".[195] This means that a second avenue is opened: equitable contract, that is, equality in conventions[196] may prevail over contractual freedom.

            The Romans believed in freedom of contract, but they also made room for laesio enormis[197] (a doctrine based on equity[198]). However, the mechanism was limited to sales of land. This indicates that in Rome freedom of contract prevailed over lesion and its basis (i.e., equity or equality). 

            The Middle Ages brought a change of perspective, and favored equality. Fairness in the exchange was the governing idea of contract, and theology.[199] Saying that fairness was the ruling entity is the same with claiming that equality dominated; after all, the contract was fair if both partners gained from it equally; equality's presence is to be observed clearly.[200] No wonder then that the Canonists expanded the theory of lesion.[201] The mechanism was based on concepts that promoted equality and was apt to effectively achieve equality in contracts.

            The 19th century was the time when freedom of contract has risen,[202] one might add, again. That was exactly the period when the F.C.C. and the La. Civ. C.[203] were enacted. As such, there is no surprise that the two Civil Codes were influenced by freedom of contract, and that, in their eyes, contractual freedom must prevail. The French doctrine, at least, points out that freedom of contract is the first principle that governs the law of conventions.[204] In regard to the Q.C.C., this normative act does not break its connection with the past, that is, with the Civil Code of Lower Canada of 1866.[205] Since the Q.C.C. maintains its connection to the Civil Code of 1866, it is only reasonable to suspect that the former favors the same concept as the latter did: contractual freedom.[206] Briefly, the three Civil Codes were more attracted by contractual freedom rather than the opposite force (i.e., lesion, based on commutative justice and morality, that is, on concepts that promote equality); it was so because of the epoch that influenced them. Still, there is another reason why contractual freedom prevailed, and not lesion. In regard to the F.C.C., if we read the discourse of the ones who participated at its drafting, we will understand the essential influence of Roman Law.[207] In the measure that we are concerned with the La. Civ. C., we will observe that it was called "... perhaps, the most Romanist civil code ever enacted ...".[208] We can easily notice that the two Civil Codes placed great emphasis on Roman Law, and, just like it, gave preference to contractual freedom, not to the doctrine of lesion.

            It is necessary to say this: lesion is based on commutative justice and morality (i.e., on concepts that promote equality). However, it has a foe called contractual freedom. This enemy desires that the contract remains untouched, whereas lesion, as ordered by the concepts underlying it, wishes that the contract is touched to assure equilibrium (or equality, even if it is not an absolute one). Contractual freedom, lesion's adversary, was given satisfaction by France, Québec, and Louisiana. Thus, lesion has a limited scope (supra. nos 6-9). Although lesion's field of application is restricted, there are a few fights in which it triumphs. After all, "unlimited freedom of contract collapses into anti-competitive realms of superior bargaining powers".[209] That is to say that a complete contractual freedom would favor the most powerful, and leave the weaker party at his mercy. However, the law, sometimes, is concerned with the weaker party. As such, the legal systems under scrutiny make way to lesion because of the inferiority of one of the contractual partners; it is so, for instance, in France and Québec, in the case of persons of full age under protection or in that of minors.[210] Furthermore, the same desire to protect what the legislator believes to be the inferior contractual partner might justify the existence of lesion in contracts made by consumers (see e.g. arts. 8-9 of the Québécois Law on Consumer’s Protection).

            In relation to sales of immovables, at least today, one might think that lesion protects sellers against speculators who do business in the domain of real estate.[211] Now that I have mentioned the sale of immovables, some aspects should be clarified in regard to the French lesion. In one case, that involved such a sale, the Court of Cassation said that "... la lésion légalement constatée est par elle-même et à elle seule une cause de rescision, indépendamment des circonstances qui ont pu l'accompagner ou lui donner naissance" (lesion, legally observed, is by itself a reason of rescission, independently of circumstances that might have accompanied it or gave birth to it).[212] This decision reflects the fact that the French judges embraced the objective conception in regard to lesion.[213] This means that, in the eyes of the French Supreme Court, lesion in the case of persons of full age is disconnected from consent; the objective conception signifies exactly that: lesion is not linked to consent (see supra no 5). One might very well disapprove of this decision and of the objective conception, because they create a discrepancy between what the law of lesion is sometimes (i.e., lesion does not protect consent) and what the law of lesion ought to be (i.e., lesion should always be linked to consent and protect it). First, the Roman laesio enormis was clearly linked to the protection of consent. The Constitution of Diocletian that allowed lesion in a sale of immovables, in favor of the seller, was meant to protect the small owners;[214] these persons, due to taxes, were forced into selling their property to potentes (i.e., great owners) for derisory prices.[215] Second, the drafters of the French Civil Code saw lesion as a vice of consent,[216] that is, as an institution linked to consent and meant to protect it. Exactly because lesion was considered as a vice of consent by those drafters, it was allowed only in favor of the seller of an immovable; a person might be constrained to sell due to his need for money, but one could hardly imagine that a person could be constrained into buying an immovable.[217] Thus, we may observe that lesion was meant to protect consent, all the time, exactly how it always ought to. Nonetheless, the French Court of Cassation did not see things this way and perverted lesion, despite the fact that it could have proceeded differently: the Supreme Court could have maintained the link between lesion and consent, just like some Louisianian courts did. The latter, in regard to a sale of immovable, underlined that “the law presumes juris et de jure that he who sells an immovable for less than half its value is acting under an error of fact sufficient to invalidate the sale”.[218] This reasoning could have been adopted, mutatis mutandis, by the French Court of Cassation, and the bond between lesion and consent would not have been broken. Nonetheless, that bond was broken by the French Supreme Court: at times, lesion and consent seem to be a divorced couple.[219] In other words, as I already said, the Court of Cassation built a discrepancy between how the law of lesion is at times (in some situations, lesion does not protect consent) and how the law of lesion ought to be (lesion should always concern itself with consent). Needless to say that it is extremely difficult to explain in a rational and non-contradictory manner a type of lesion that has nothing to do with consent. Even great authors encounter difficulties, and their ideas seem contradictory. For instance, in regard to sales of immovables, one author says that "bien que la doctrine classique ait souvent été tentée de voir dans la lésion un vice du consentement présumé ... ce n'est pas là le fondement des textes ...; c'est en réalité un tradition historique ..."[220] (though the classic doctrine was often tempted to see, in regard to lesion, a presumed vice of consent, that is not the foundation of the texts; in reality, what is involved is a historical tradition). In other words, this first idea might be understood in the sense that lesion is not connected to consent, but with a historical tradition. Nonetheless, the same author, at the same page and section says that "... le maintien des textes s'explique cependant par l'idée qu'ils forment malgré tout une limite à des déséquilibres contractuels trop criants profitant généralement à des spéculateurs immobiliers abusant de l'ignorance de vendeurs particuliers"[221] (the existence of the texts is explained by the idea that they form a limit to great contractual imbalances that profit to speculators who abuse of the sellers' ignorance). This second idea contradicts the first one, because it connects lesion to sellers' consent; these sellers were ignorant, and lesion comes to protect their troubled consent.

            Briefly, lesion, based on commutative justice and morality, does fight the initial contractual imbalance, and desires to touch the contract in order to assure equilibrium; furthermore, lesion, usually, takes care of consent, and when it does not, reason imposes that it ought to. Lesion, in the objective conception, is an unfortunate incident, and the law of lesion (how it actually is at times) creates contradiction within the spirit of the researcher (this is shown by the writings of Alain Bénabent).   

            Part III. Unconscionability and Lesion Compared

            11. The “rule of thumb” – irrelevance of adequacy of values exchanged. Consideration is the basis of enforcement of a promise.[222] The elementary principle underlined by important authors is that no inquiry into the adequacy of consideration will take place.[223] At least three aspects can constitute the explanation of the general rule. First, consideration is connected to enforceability; it is not a device for policing contracts in order to make sure that they are fair to both parties.[224] Second, contractual partners are free to do what they desire: they make their own contracts, agree upon their own exchange, and fix their own values.[225] Third, a certain flavor of policy may be detected: after announcing the well settled rule, a court adds that “absolute equality is not to be hoped for, and is seldom attained in men's dealings one with the other; nor is consideration to be measured in terms of dollars and cents alone; convenience, avoidance of troublesome details and efforts are proper elements”.[226] In my view, the observation that consideration is not to be measured only in terms of money, indicates that the courts must restrain themselves from the following task: establishing the equality in an agreement; it is simply impracticable for them to do so, when one takes into account the kind of values that might be included in the concept of consideration.

            The above mentioned principle has governed cases whose number amounts to legions.[227] On numerous occasions the courts indicated that they do not inquire into the adequacy of consideration,[228] or that this doctrine “... does not require or imply an equal exchange between the contracting parties”.[229]

            Of course, as it happens with most principles, some exceptions must be acknowledged. One of these derogations bears the name of unconscionability.[230]

            12. Unconscionability presented. We are told by Black’s Law Dictionary that a contract or agreement is unconscionable when “no promisor with any sense, and not under a delusion, would make [it], and that no honest and fair promisee would accept [it]”.[231] First of all, it must be said that this definition may be traced back to an English case: Earl of Chesterfield v. Janssen. The decision was cited by the United Stated Supreme Court, in Hume v. United States.[232] Briefly, Black’s Law Dictionary’s understanding of unconscionability was borrowed from cases; even so, the definition seems incomplete. As it can be seen, it mentions nothing about disproportion, nor about the moment when the disparity must occur. However, this does not mean that one cannot find the information he needs about those two aspects. Any curios person can obtain this data by looking at § 208 of the Restatement (Second) of Contracts and its Comments.[233] Only then he or she will apprehend that a disparity is imperative, and it must appear when the contract is formed.

            The nature of unconscionability revolves around Equity;[234] in other words, this is an equitable issue.[235]

            Unconscionability’s scope encompasses transactions regarding goods; the doctrine is to be noticed in § 2-302 of the Uniform Commercial Code.[236] More specifically, the creature discussed here relates to sales of personal property; the consequence is generated by § 2-302’s place in the UCC. However, the courts admitted that § 2-302’s unconscionability may go beyond the domain indicated by the UCC’s text.[237] Furthermore, this being was expanded to all sorts of agreements by §208 of the Restatement (Second) of Contracts.[238] Still other uniform laws are familiar to the concept of unconscionability; among these the following may be enumerated: (i) the Uniform Consumer Credit Code § 5.108 (1974);[239] (ii) the Uniform Consumer Sales Practices Act § 4 (1970);[240] (iii) the Uniform Land Transactions Act § 1-311 (1975);[241] (iv) the Uniform Residential Landlord and Tenant Act § 1.303 (1972).[242]

            Unconscionability’s most important prerequisites, at least under § 2-302 of the UCC, seem to be these ones: (i) imbalance and (ii) exploitation of the contractual partner. At least one case appears to support such a view. In Jones v. Star Credit Corp.,[243] the court held that a contract of sale was unconscionable: a freezer unit that was worth $300 was sold for $900 (the final amount that was to be paid by the buyers went as high as $1,439.69, because other charges were included). Furthermore, the court added that “... the value disparity itself leads inevitably to the felt conclusion that knowing advantage was taken of the plaintiffs”.[244] The latter part of the previous citation is quite enlightening: the plaintiff was exploited.

One might be tempted to argue that the same preconditions must be observed under the Restatement (Second) of Contracts and all the uniform laws mentioned above. The former’s provision on unconscionability was patterned after the UCC’s;[245] as such, it would be only natural to think that the same conditions are required. The Uniform Residential Landlord and Tenant Act § 1.303 was adapted from the UCC;[246] thus, its requirements should be similar to those of the UCC’s provision. As to the rest of the uniform laws, the presence of exploitation is acknowledged by the texts themselves;[247] however, it would seem that an additional number of elements must also be analyzed.

            When unconscionability is observed the court may provide a few remedies such as (i) denial of enforcement of the contract, (ii) elimination of the offending clause, or (iii) limitation of the applicability of the contractual provision.[248]

            13. Lesion and unconscionability face to face. From the very beginning it must be grasped that both beings are embraced rather exceptionally. In France, Québec, and Louisiana lesion is usually defeated by the imperatives represented by conventional liberty and the security of transactions. To some degree,[249] freedom of contract[250] is the reason why unconscionability is a derogation.[251] Though the latter doctrine was sometimes expanded by the courts, and the drafters of the Restatement Second introduced it in that project, unconscionability still remains rare. It is so, because of its nature as an equitable remedy; this type of remedy is discretionary;[252] therefore, it is not reasonable to think that, in general, courts will use their discretion to defeat the rule according to which inequality of the exchange is irrelevant; after all, this principle is almost as old as the doctrine of consideration,[253] and the courts within the Common Law tradition are not famous for their willingness to set aside the products of history.

            As to the nature of the two entities, one might think that they are quite different: unconscionability is connected to Equity, as opposed to common law. This distinction is ignored in civilian jurisdictions,[254] and even in a mixed one as Louisiana;[255] lesion cannot be chained to such an aspect.

            The scope of the two spectres is similar, at least in regard to some contracts. For instance, both lesion and unconscionability may be used when a contract involves a consumer (see e.g. Uniform Consumer Credit Code § 5.108 – U.S.; arts. 8-9 of the Law on Consumer’s Protection - Québec). On the other hand, the “codal French and Louisianian lesions”[256] could not have appeared in a situation as that which occurred in Jones v. Star Credit Corp. (see supra. no 12).

            The structure of lesion and unconscionability is characterized by both similarity and difference. Their composition is the same if one has in mind the requirement of imbalance. Nonetheless, we must not forget that, in France and Louisiana, the amount of the mathematical imbalance is highlighted by legislation (see e.g. the case of the contract of sale). The bulk of the disproportion is not indicated by legislation, in regard to the Québécois lesion, nor as far as U.S.’s unconscionability is concerned. The exploitation requirement is a component of Québec’s lesion, but it has nothing to do with France’s lesion (at least not when persons of full age are in question). Unconscionability also seems to be opened to the condition called “exploitation”; however, the courts may take into account a group of additional[257] elements when they try to determine if unconscionability has shown itself.

            The remedies can be seen as similar, if one meditates in broad terms. Lesion and unconscionability may kill the contract. Rescission and the court’s possibility not to enforce the agreement generate such an effect. Let us assume that in a civilian jurisdiction, after the contract was made and before the parties perform their obligations, the court pronounces the rescission. In such a case the contract is dead. In a common law jurisdiction an unconscionable contract that the court refuses to enforce has the same faith. On the other hand, a civilian court can alter the contract on account of lesion (supra. no 9). A common law counterpart may reach the same result: Jones v. Star Credit Corp. illustrates it quite nicely.[258]

            The one who has in mind their nature, might say that lesion and unconscionability are somehow different mechanisms. Nonetheless, they are functional equivalents. Both aim at the same problem (i.e., protection of consent[259] and the originary contractual imbalance), and, generally, solve it in a similar manner. Furthermore, one author observed that "Anglo-American common law can be seen as firmly planted upon Aristotle's notion of corrective justice" (I have indicated above that corrective justice is also named commutative justice; see supra no 10).[260] Thus, unconscionability, part of the American Common Law, rests on commutative justice, exactly like lesion.

            Part IV. Lesion and other Functional Equivalents

            14. Enumeration of lesion's functional equivalents. Lesion’s functional equivalents that I have identified are the following:[261] (i) actio aestimatoria (quantis minoris); (ii) the vices of consent (error, fraud, and duress); (iii) capacity; (iv) objective cause; (v) abusive clauses; (vi) usury; (vii) leonine clauses; (viii) the false recital of consideration; (ix) the penal clause; and (x) lex commissoria regarding real securities.

            In the following paragraphs, each of the above mentioned techniques will be briefly explained; their elucidation shall be accompanied by examples illustrating that they are functionally equivalent to lesion.

            15. Actio aestimatoria or quantis minoris. This kind of action belongs to the purchaser of a thing affected by hidden vices or defects,[262] and who desires the reduction of the price.[263] The defect must exist when the contract of sale is formed.[264]Actio aestimatoria works in the following manner: the buyer acquires a thing that is affected by a hidden vice. Despite the defect, the good still conserves some utility for the purchaser.[265] The trouble is that the contractual partner paid a price that was too high, and that he would not have offered to the seller if he had known[266] the vice (see F.C.C. art. 1641, Q.C.C. art. 1726, and La. Civ. C. art. 2520 (3)). In other words, there is an imbalance: the purchaser gives too much, and the seller transfers too little (i.e., a thing not completely useful). Also, there is a problem with consent: the buyer's will was affected, because he was not aware of the state of the purchased thing. Under these circumstances, the acquirer may obtain the reduction of his obligation.

            One can easily notice that lesion and actio aestimatoria are functional equivalents, at least to some extent. Both aim at the same problem: troubled consent and an originary imbalance (that is, a disproportion between obligations that existed when the contract was made; as pointed out, the hidden vice is present when the sale is perfected). Furthermore, to some degree, both achieve the same result: the reduction of the obligation (or the alteration of the contract).       

            16. The vices of consent (error, fraud, and duress). Error may be understood as an inexact representation of reality.[267] Not every type of false representation has importance.[268] For example, the error on the value of the contractual object is usually of no consequence.[269] However, things are different if the error regarding the value is generated by an inaccurate representation of the substantial qualities of the contractual object.[270] Let us assume that a person buys a luxurious residence, which does not have a panorama.[271] He pays a colossal price for what he considers his new home. Furthermore, let us imagine that the panorama was a substantial quality of the immovable for the errans,[272] and that the seller should have known of this. Under these facts, the buyer might claim error and obtain the relative nullity of the contract; the purchaser may be unsatisfied by the superior price he paid as a result of his wrong belief regarding the qualities of the thing. One may very well notice how lesion and error are, sometimes, functional equivalents; in both cases, there are a problem of consent and a primordial disproportion between obligations (errans may have paid too much for something that, in reality, was worth less from the very moment the contract was formed). Though the purchaser may not use lesion in order to destroy the contract and set aside the disparity, he has another tool that achieves a very similar result: error.

            Fraud may be seen as an error provoked by deceit.[273] This type of error, even if it concerns the value of the object,[274] can bring with it the relative nullity or the revision of the contract.[275] Let us suppose that a person desires to buy a car. He seeks a professional seller, who, in the end, appears to be ruthless. The vendor takes one of his many cars and hides all its extraordinary imperfections by giving it a complete facelift. Furthermore, he tells the buyer that the car is in perfect shape, and he shows him a fake certificate that proves his words. The seller assures his partner that the car is worth $10,000, although its true value is $4,000. The purchaser pays the former sum; later he discovers the deceit. Assuming that the buyer wants to keep the car, he may very well request damages in value of $6,000, on grounds of fraud.[276] By doing so, he sets aside the contractual imbalance; he equilibrates the convention.[277] Needless to say that lesion and fraud can be considered functional equivalents: in both cases, the problem is represented by a troubled consent and the primordial imbalance; these institutions have the aptitude to reach a similar result, that is, contractual equilibrium.

            Duress was defined as a threat that generates a feeling of fear in the spirit of the contractual partner.[278] This threat may consist in an intimidation with a physical or moral harm;[279] it is also possible to be targeted at the contractual partner’s loved ones.[280] The elements taken into consideration in order to establish the fear are age, intellectual development, and, generally, the condition of the party.[281] Imagining an example is no difficult task: the seller threatens the buyer’s wife that he will divulge her sexual fetish, if the purchaser does not agree to acquire the former’s house for $2 million dollars. Although the value of the immovable is $1 million dollars and the purchaser would have been willing to pay that price, he accepts to give its double. Assuming that, after some time, the buyer leaves his wife, and his state of fear is gone, he may demand damages represented by the difference between the price and the true value of the thing. I believe that it is quite understandable how lesion and duress are functional equivalents, on some occasions: they submit to attack the same problem (i.e., the "diseased" consent and the primordial imbalance between the obligations); also, the same result is achieved (in case of lesion it is possible to obtain the reduction of the obligations; the above hypothetical generates a similar solution: by receiving damages in amount of $1 million dollars, the situation presents itself as if the purchase price was “cut” in half).

             17. Capacity to make juridical acts. The legal literature teaches us that capacity represents the rule.[282] However, exceptions do exist. Certain categories are touched by an incapacity to make juridical acts; it is so for minors and persons of full age under protection.[283] The incapacity to make juridical acts brings with it relative nullity[284], as a rule. Let us assume that a person of full age mentally diseased makes a contract of sale.[285] He or she “agrees” to transfer an immovable that is worth $50,000 for a price of $20,000. Under these circumstances, it is possible for the sale to be annulled on grounds of the seller’s incapacity. Of course, the troubled consent and the originary imbalance cannot escape us; also, the disproportion is cured with the help of relative nullity. As such, one can apprehend that lesion and capacity to make juridical acts are functional equivalents, at some moments: both concentrate on the same problem (i.e., a problematic consent and a primordial imbalance) and reach similar results (i.e., the death of the contract).        

            18. Objective cause.[286] I am concerned here with the objective reason which determined every party to make the contract.[287] This cause is unchangeable in the same type of juridical act,[288] regardless of the person. For instance, in a sale, regardless of the person who has the quality of vendor, the objective reason for making the contract is always the same: the receipt of the purchase price.[289] The absence of objective cause, according to modern theory, is punished by relative nullity.[290] The fact that lesion and objective cause are, at times, functional equivalents is proven by the following idea: the absence of the latter is seen as a lesion in amount of 100%.[291] Let us imagine than in a sale the vendor’s objective cause (i.e., the price) is missing, and no desire to make a liberality (i.e., a gift or donation) can be noticed; the absence of the price may hide a troubled consent (e.g., the seller was the buyer's employee and the former was afraid to refuse the contract because he believed he might lose his job). The problematic consent and the originary imbalance seem obvious: the seller's mind is not free and he has the obligation to transfer the thing, whereas the other party has no duty. Under those circumstances, the transferor of the thing may request the relative nullity of the convention. Here, too, one notices the functional equivalence between objective cause and lesion: the problem is the same (i.e., affected consent and imbalance), and the result is also similar (i.e., assassination of the contract).           

            19. Abusive clauses. A clause is abusive when it creates a significant imbalance between the rights and obligations of the parties; the disadvantage exists in the detriment of the consumer or non-professional;[292] in Québec, abusive clauses seem to be accepted in contracts made with consumers, but also in adhesion conventions;[293] the Québécois abusive clauses appear to be the ones that can be qualified as excessive and unreasonable.[294] To put it simply, an abusive clause destroys the contractual equilibrium, both in France[295], and Québec.[296] As it seems, the abusive clause and the imbalance it generates are originary; they show themselves at the moment of the formation of the contract.[297]

            The French Court of Cassation decided that one is in the presence of an abusive clause in the following situation: a contract established that a student who was enrolled in a school (VBOS Ecole Pigier) will have to pay the complete amount of the education taxes, and it did not allow her to be partially excused if she decides not to complete her studies.[298]

            Of course, an abusive clause may hide a problem of consent. Referring to Q.C.C. art. 1437 (i.e., the text that discusses abusive clauses), a court indicated that "la notion d'exploitation est à la base de la règle de ce texte"[299] (exploitation is underlying the rule of the text). Thus, one can believe that, for instance, the consumer was exploited by the professional; in other words, one may assume that the consumer's consent was "diseased" when he accepted the clause that disadvantaged him.

            It goes without saying that lesion and abusive clauses can be regarded as functional equivalents: they solve the same issue, which is a troubled consent and the originary imbalance; both may reach the same result (i.e., the destruction of some element that lacks equilibrium).[300] I am compelled to add here that lesion and abusive clauses, though they are very close mechanisms, should not be regarded as one and the same thing. Lesion, at least in France and Louisiana, supposes a mathematical imbalance indicated by the law itself (the example of a sale between persons of full age is quite enlightening); even in Québec, lesion between persons of full age requires a mathematical imbalance, though the law does not show its amount.[301] The disadvantage that exists in case of the abusive clauses is quite a delicate issue: it is possible that mathematics has no part in it.[302] Briefly, lesion requires always a sort of disproportion between prestations (which is mathematical, if the contractual partners are persons of full age); the mechanism of abusive clauses is broader: there might be a mathematical imbalance between prestations that indicates that a clause is abusive,[303] or mathematics might be irrelevant.[304] Furthermore, the fact that lesion and abusive clauses are different was highlighted by important authors.[305]

            20. Usury. This mechanism signifies the stipulation of excessive interests in a contract of loan.[306] In the context of a loan of money, some authors[307] and even legislators[308] believe that lesion and usury are exactly the same thing. As I have mentioned above, this view is questionable. Loan of money is a unilateral[309] and real[310] contract. This kind of convention involves only rights for one party, and solely obligations for the other:[311] the lender has the right to receive the sum of money, and no duties. The borrower has the duty to restitute that sum. As such, there can be no lesion; it is impossible to notice an imbalance between prestations, simply because there is only one prestation (that of the borrower). However, usury infects often times this type of contract; as such, some even speak of “usurary” loans.[312]

            Nonetheless, lesion and usury are functional equivalents: both have the same target (protection of consent and an originary imbalance), and reach the same result (for instance, the reduction of the excessive advantage).[313] I have claimed that usury, like lesion, may hide a trouble of consent. Imagining an example is not impossible. We may very well believe that the borrower of a sum of money accepted a colossal interest, because he was under a pressing need to obtain that sum. As such, the lender took advantage of the borrower, and the latter's consent was not completely free.

            21. Leonine clauses. These contractual provisions appear especially in a convention of partnership;[314] they offer the entire profit to one of the associates, or they indicate that one of the parties will not receive any portion of the profit.[315] Briefly, one associate or partner takes the lion’s part.[316] If one understands that an essential aspect of partnership is for every associate to participate in the distribution of benefits,[317] it is not hard to imagine why leonine clauses are intolerable. They contradict the very nature of this contract and generate imbalance. Let us imagine that two persons create a partnership; one of these two persons is ignorant, and it is unclear to him what it means to be involved in a partnership; they establish the resources that they will have to combine, in order for the entity to be successful. Furthermore, they indicate that one will obtain the entire profit generated by the partnership. The problem of consent and the lack of equilibrium are striking: one partner is ignorant, and exploited by the other, and the latter gets everything, whereas the former receives nothing. Such a clause, at least in France, is considered non-written (F.C.C. art. 1841-1).

            As it can be seen, lesion and leonine clauses are functional equivalents: they fight the same problem (i.e., troubled consent and an imbalance that exists from the very moment the contract is formed), and can reach a similar result (that is, the destruction of the disproportionate element).

            22. False recital of consideration. As noted above (supra. no 11), promises are binding or enforceable if they are made for a consideration.[318] The latter is “... the glue that binds the parties to a contract together”.[319] The adequacy of consideration, usually, is not a concern of the courts.[320] Nonetheless, nominal consideration or a false recital is an aspect that courts do not overlook. This kind of consideration “... is so insignificant as to bear no relationship to the value of what is being exchanged (e.g., $10 for a piece of real estate)”.[321]

            Let us suppose that A promises to convey to B a tract of land that is worth $500,000 in exchange of a consideration of $10. A, when he makes the promise, is B's employee, and he fears that refusal of the contract will cause him to remain without his job. Later, A encounters some financial difficulties. C offers A to pay him $480,000 for the real property that the latter promised to transfer to B. A agrees. After some time, B brings suit against A for breach of their contract. Under these facts, the convention would be unenforceable.[322]

            It is noticeable that false recital of consideration and lesion may appear as functional equivalents: they fight against a problem of consent and against an originary imbalance; they also lead to a similar result (e.g., the agreement is left for dead). One may notice how nominal consideration is apt to involve a trouble of consent, and, in reality, something more lurks behind that doctrine.

            Of course, it is hard to deny that nominal consideration's primary function is to establish if there is or not a consideration (see infra no 25). Nonetheless, one might look at consent and the primordial imbalance that are present in the context of nominal consideration and understand that this doctrine also has the ability to protect consent and fight that lack of equilibrium (this would be nominal consideration's secondary function).

            23. The penal clause. Now, let us take a look at the mechanism known as penal clause. This contractual provision is meant to establish the amount of damages owed by the debtor if he does not perform his obligation.[323] The court has the possibility to reduce the established damages, under the conditions indicated by Q.C.C. art. 1623 (2),[324] or by F.C.C. art. 1152.[325]

            One can imagine that two parties make a contract and they draw a penal clause according to which the failure to perform will generate the duty of the obligor to pay damages in a great amount;[326] we may further assume that the penal clause was accepted by a party, because of his financial situation (i.e., he needed the money brought to him by the contract). Under those facts, we can observe two aspects: (i) the problem of consent (the party's mind was not completely free when the penal clause was drafted, because of the pressing financial situation), and (ii) the penal clause is abusive or excessive (because it creates a serious imbalance from the moment the contract is made). The court has the power to reduce the amount of the damages. The penal clause, or its mechanism as created by Q.C.C. art. 1623 or by F.C.C. art. 1152, appears to be functionally equivalent to lesion. Both may attack the same problem (the "sickness" of consent and the originary contractual imbalance), and reach the same result (a cured consent and the equilibrium in the convention). However, the fact that they are functional equivalents does not mean that they are the same thing. Lesion is designed to protect consent (or ought to be so all the time) and it is also meant to fight imbalance. The main function of the penal clause is to assess damages; they are different mechanisms, but sometimes they can be functional equivalents.

            24. Lex commissoria in the realm of real securities. Q.C.C. art. 1801 forbids the commissory pact (or lex commissoria)[327] in the field of real securities;[328] F.C.C., on the other hand, allows it (see e.g. art. 2459, which makes way for this pact in relation to conventional mortgages). This clause does operate a dation en paiement[329] because the creditor who does not obtain his credit right gets instead the thing that is the object of the security.[330]

            Let us assume that A lends a sum of money to B. The latter secures the restitution of the sum with a mortgage on one of his buildings. The parties establish that if B does not perform his obligation to restitute the money, A will become owner of the construction. B accepts the commissory pact, because he is in great need for the borrowed money; A knows this, and he understands that B is "willing" to "consent" to anything. The clause that allows A to become owner of B’s house is considered non-written in Québec, but is valid in France. One can imagine how this clause could create a serious imbalance from the very beginning, and how a problematic consent is involved. Perhaps B’s building is worth much more than the sum that he must restitute, and his pressing need for money subjected him to exploitation. Thus, there is an imbalance between advantages: B’s advantage (the sum he borrowed), and A’s advantage (the possibility to get a construction) are disproportionate. Furthermore, there is a problem of consent: B's mind was troubled by the urgent need for money. The mechanism of lex commissoria destroys the imbalance by setting aside such a commissory pact (Québec), or by indicating that the creditor must transfer to the debtor the difference between the value of the immovable and the amount of the credit right (France; see F.C.C. art. 2460[331]); in France, one can observe a reduction of the creditor’s advantage. Furthermore, the mechanism of lex commissoria might give some protection to a "diseased" consent.     

            One may see why lesion and the mechanism of lex commissoria are functional equivalents: both may rise against the same problem (i.e., "diseased" consent and primordial contractual imbalance), and reach a similar result (i.e., a healthy consent and assurance of equilibrium).

            Part V. Final Observations

            25. My work has reached its end. The paper’s body encompasses an institution known from the dawn of history, at least as far as the contract of sale is concerned; this being goes by the name of lesion. The creature was observed in three legal systems: France, Québec and Louisiana. The starting point was represented by attempts to imagine the thesis of this paper. Also, I have forced myself to define lesion. Furthermore, I have indicated the tension between contractual freedom and the spectre. In every one of these jurisdictions, I have tried to put into the light lesion’s nature, its scope and pre-requisites; the remedies it offers were also taken into account. Of course, French, Québécois and Louisianian lesions were compared: in some aspects they are the same (e.g., remedies, if one is to speak generally); on the other hand, they also seem to vary (it is so, to some extent,[332] for their realm of application; in Louisiana, unlike in France and Québec, lesion does not concern minors and persons of full age under protection; a functional equivalent appears to be enough for the former legal system). It may be easily noticed that the concepts that serve as lesion's foundation were brought to light.

            The United States Common Law has an analogous to lesion: the doctrine of unconscionability. After the latter was discussed, the two were faced off. The comparison between them revolved around their nature, scope, elements, and remedies. The most curious aspect is that both lesion and unconscionability are generally defeated by contractual liberty or freedom; this is an indicium that Civil Law and Common Law Traditions, respectively mixed jurisdictions as Louisiana hold in high regard the so-called "freedom of conventions" and its desires (i.e., contract is not be disturbed).

            I have announced from the very beginning that the method of this study is the so called equivalence functionalism. Thus, a Part (i.e., IV) was preoccupied with institutions that on some occasions are lesion’s functional equivalents. Though these creatures may have the same function as lesion, it most definitely does not mean that they are concerned only with the same problem as the latter; also, one should not understand that their main function is the one that lesion has. False recital of consideration or nominal consideration may be cited. This entity’s primary focus is to make sure that there is a consideration; “... a false recital of consideration or merely nominal consideration ... will not constitute consideration”.[333] That is its primary function or the problem it attacks: the presence or absence of consideration. Be that as it may, it also focuses on the issue of imbalance, and may involve a "malady" of consent: a party promises something without receiving much in exchange, and the acceptance of such a "transaction" occurs due to some fear.

            Some of the identified functional equivalents[334] do play a most interesting role: they refute contractual imbalance and generate equilibrium in conventions that are “allergic” to lesion.[335]

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