UNCONCIONABILITY

Question 1

Policy Arguments

Answer 1

Role Of the Courts
Efficiency
Paternalism

Question 2

Unconscionability - Definition

Answer 2

Absence of Meaningful Choice, and
Terms that are unreasonably favorable to the other party
(require both Procedural and Substantive Unconscionability)
QUESTION OF LAW to be decided by the Court, not by the Trier of FACT.
Focus on time when contract was made.

Question 3

Procedural Unconsciounability

Answer 3

Absence of Meaningful Choice

Disparity in Bargaining Power, hidden unintelligble terms (convoluted language),

Question 4

Substantive Unconscionability

Answer 4

• Fairness of the Resulting Bargain.

Question 5

Adhesion Contract

Answer 5

• Strengthens a claim of unconscionability
• Standard Form Contracts
• Offered on a take-it-or-leave-it basis
• By Party with greater bargaining power.

Question 6

UNCONSCIONABILTY (COMMON LAW)

Answer 6

Such a contract as no man in his senses and not under delusion would make.

• Means to Control Standard Form Contracts where:
• No Opportunity to Control Terms
• Unequal Bargaining Power
• Take it or leave it basis