Guilt-Free Markets? Unconscionability, Conscience, and Emotions

by Hila Keren


“In a market society characterized by record-level socio-economic inequalities, many business opportunities for exploitation arise. Greed competes with conscience; to exploit or not to exploit becomes a pressing question. Each time greed wins, an oppressive contract is born, depriving the exploited party of limited resources, further enriching the exploiter, and increasing the ever-growing gap between the powerful and powerless.

Such was the case of Henrietta Charley as described in a 2014 decision of the Supreme Court of New Mexico.3 Ms. Charley worked hard to make ends meet. A mother of three and a medical assistant earning $10.71 per hour working in a medical center, she found herself under financial distress and had to take out a loan of $200 “to buy groceries and gas.”4 Although she had never done this before,5 taking the loan was easy. The lender’s storefront was one of many similar businesses crowding Farmington’s Main Street, only a few minutes’ drive from Ms. Charley’s workplace.6 Inside, employees of “Cash Loan Now” were trained to offer a swift ten-minute lending process to anyone with a job.7 They were instructed to misrepresent the interest rate in daily terms ranging “between $1.00 and $1.50 per day” for every one hundred dollars borrowed.8 The lender’s manuals further scripted the interactions with the borrowers, requiring employees to conceal the payment schedule and never explain that the loan was interest-only.9

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