Overview Edit

Unconscionability refers to a situation where contract provisions are so one-sided that they are deemed unenforceable. The principle is one of preventing oppression and unfair surprise. Unconscionability has both a substantive and a procedural component.

For a contract to be unenforceable, there must be both substantive and procedural unconscionability, although there may be an inverse relationship between the two elements. The more substantively unconscionable a provision, the less procedural unconscionability is required.[1]

At common law, unconscionability is a defense against enforcement, not a basis for recovering damages.[2]

References Edit

  1. Armendariz v. Foundation Health Psychcare Servs., Inc., 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000) (full-text) ("Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.") (quoting 15 Williston on Contracts (3d ed. 1972) §1763A, pp. 226-27).
  2. See, e.g., Rest. (Second) of Contracts §208 (1981) ("If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result."); Bennett v. Behring Corp., 466 F. Supp. 689, 700 (S.D. Fla. 1979) (full-text) ("[T]he equitable theory of unconscionability has never been utilized to allow for the affirmative recovery of money damages."); Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451 F.Supp.2d 16, 36 (D.D.C. 2006) (full-text) ("Plaintiff cannot recover compensatory damages under the common law doctrine of unconscionability.").

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