Tuesday, April 26, 2011



The Doctrine of Unconscionability, section 2-302 of the Uniform Commercial Code, is protection for the little guy against grossly unfair contract terms set out by the big guys.

Unconscionability, by definition, is an amoral, unscrupulous action.  In contract law, it refers to an agreement so grossly unfair as to be shocking to the conscience.

A defense against the enforcement of a contract or portion of a contract.  If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it.  A contract is most likely to be found unconscionable if both unfair bargaining and unfair substantive terms are shown. An absence of meaningful choice by the disadvantaged party is often used to prove unfair bargaining. 
Definition from Nolo’s Plain-English Law Dictionary

In contract law an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power. An unconscionable contract may take advantage of the little guy's ignorance or lack of bargaining power.  It usually involves the use of a pre-printed form contract offering no option except to “take-it-or-leave-it.”  Contractual provisions that indicate gross one-sidedness in favor of the seller include provisions that limit damages against the seller, limit the rights of the purchaser to seek court relief against the seller, or set limitations on a warranty.   Deliberate misrepresentation of fact also constitutes unconscionable conduct.