Unconscionability

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 procedural component focuses on the factors of oppression and surprise.


 * Oppression results where there is no real negotiation of contract terms because of unequal bargaining power.


 * “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.

The substantive component of unconscionability looks to whether the contract allocates the risks of the bargain in an objectively unreasonable or unexpected manner.