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Procedural unconscionability

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Overview Edit

Procedural unconscionability focuses on two factors in contract formation:

Oppression arises when there is inequality in bargaining power between the parties to a contract, resulting in no real opportunity to negotiate the terms of the contract and the absence of meaningful choice. Surprise involves the extent to which the supposedly agreed terms were hidden from the party seeking to avoid enforcement of the agreement.[1]

Oppression Edit

A contract or clause is procedurally unconscionable if it is a contract of adhesion.[2] A contract of adhesion, in turn, is a "standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it."[3]

Surprise Edit

“Surprise” involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix form drafted by the party seeking to enforce the disputed terms.

References Edit

  1. Motsinger v. Lithia Rose-FT, Inc., 211 Or. App. 610, 156 P.3d 156 (2007)(full-text).
  2. Flores v. Transamerica HomeFirst, Inc., 93 Cal.App.4th 846, 853, 113 Cal.Rptr.2d 376 (2001)(full-text).
  3. Armendariz v. Foundation Health Psychcare Serv., 24 Cal.4th 83, 113, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000)(full-text) (citations and internal quotation omitted).

See also Edit

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