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Unusually harsh and shocking to the conscience; that which is so grossly unfair that a court will proscribe it.

When a court uses the word unconscionable to describe conduct, it means that the conduct does not conform to the dictates of conscience. In addition, when something is judged unconscionable, a court will refuse to allow the perpetrator of the conduct to benefit.

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 is one that no person who is mentally competent would enter into and that no fair and honest person would accept. Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace.

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 disclaim a Warranty. State and federal Consumer Protection and Consumer Credit laws were enacted to prevent many of these unconscionable contract provisions from being included in sales contracts.

Unconscionability is determined by examining the circumstances of the parties when the contract was made; these circumstances include, for example, the bargaining power, age, and mental capacity of the parties. The doctrine is applied only where it would be an affront to the integrity of the judicial system to enforce such contracts.

Unconscionable conduct is also found in acts of Fraud and deceit, where the deliberate Misrepresentation of fact deprives someone of a valuable possession. Whenever someone takes unconscionable advantage of another person, the action may be treated as criminal fraud or the civil action of deceit.No standardized criteria exist for measuring whether an action is unconscionable. A court of law applies its conscience, or moral sense, to the facts before it and makes a subjective judgment. The U.S. Supreme Court's "shock the conscience test" in rochin v. california, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), demonstrates this approach. The Court ruled that pumping the stomach of a criminal suspect in search of drugs offends "those canons of decency and fairness which express the notions of justice of English-speaking peoples." The Court relied on these general historical and moral traditions as the basis for ruling unconstitutional an unconscionable act.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


adj. referring to a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated on the theory that he/she was misled, lacked information, or signed under duress or misunderstanding. It is similar to an "adhesion contract," in which one party has taken advantage of a person dealing from weakness. (See: contract, adhesion contract)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.


morally abhorrent. In the legal context, from time to time and place to place the law insofar as not already incorporating moral issues allows exceptions to allow parties some degree of relief from being imposed upon. The modern legal conception tends to be discussed around the more practical and objective concept of inequality of bargaining position, which can help consumers as much as the more traditional beneficiary of protection the small debtor pressed for excessive interest or repossession.
Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
(85) The Garcias, both former Scientologists, sought to invalidate on grounds of unconscionability a contractual provision binding them to Scientologist arbitration.
For example, as noted, before Rent-A-Center, several courts did not allow arbitrators to decide unconscionability challenges because of their "self-interest in deciding that a dispute is arbitrable." (149) After Rent-A-Center, these same courts have reluctantly acknowledged that their previous rulings "discriminate!] against arbitration, putting agreements to arbitrate on a lesser footing than agreements to select any judicial forum for dispute resolution." (150) Thus, they have "reject[ed] the argument, however practical it may be, that an arbitrator will be unable to determine the question of arbitrability because he or she may potentially be driven by an ulterior interest in keeping the case in arbitration to generate fees." (151)
In cases in which the facts include, for example, a failure to allow one party to fully review and retain a copy of the agreement, coercion, or pressure into signing the agreement, prevention of one party from understanding the agreement, or a roll-out of an agreement containing a class-action waiver after a class-action is threatened or has been initiated, courts may be more likely to find procedural unconscionability. (26)
"sliding scale" approach to unconscionability. (160)
Procedural unconscionability hinges on the contract formation process.
question of procedural unconscionability. Thus, it is apparent that the
(95) For the Ninth Circuit, California precedent on this point was a "refinement of the unconscionability analysis applicable to contracts generally in California." (96) Accordingly, in the view of the Ninth Circuit, the FAA did not preempt California's application of its well settled unconscionability rule.
Having identified the concept of unconscionability as the touchstone of the trust, he professed himself unable to see how the bank's conscience could be affected.
(68) In Italian Colors, the Court held that even if the cost of arbitration would exceed the possible total recovery the plaintiff could expect, the challenge of unconscionability was still preempted by the FAA.
(69) The loan company contended "that all state law unconscionability defenses are preempted by the [FAA] in all cases," pursuant to the holding in Concepcion.
Courts may also turn to the common law doctrine of unconscionability to address mandatory arbitration clauses in the provision of these free digital services.