Pushing Equity’s Envelope: Probing the Arbitrary Distinction between Immoral and Unconscionable Commercial Behaviour

Some forms of commercial conduct, such as price gouging, are technically ‘legal’ but nevertheless condemned by most as reprehensible. This article pushes equity’s envelope and explores the opaque line separating immoral commercial conduct from legally unconscionable commercial conduct. It explores the cases in which unconscionability has been alleged but not proven, analysing the evaluative method in each to extrapolate those features or qualities of the conduct involved to determine how the courts delineate the merely unreasonable from the unlawful. This informs the posited ‘spectrum’ of commercial behaviour, identifying what appears to be the ‘default’ judicial perception of the gravity of various forms of business conduct. Such a spectrum not only serves to guide and inform the behaviours and strategies of market players and their counsel but helps us better understand how equity gauges the lawfulness of commercial behaviour, and the role conscience and morality play in this normative process.