unconscionable


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Related to unconscionable: Unconscionable contract

Unconscionable

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.

unconscionable

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)

unconscionable

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.
References in periodicals archive ?
"This validates that Rubin was motivated to coerce and defraud Plaintiff to enter into an unconscionable Premarital The agreement so to conceal and engage in illicit sexual activities and ensure the flow of payments of hundreds of thousands of dollars to other women "without being detected by Plaintiff." 
As Bigwood has noted, unconscionable conduct is 'under-theorised, and hence under-explained' in Australia.
Such a contract is not unconscionable per se, he said, while noting that this one "does rise to such level."
"The thought that any state would seek to deter parents by inflicting such abuse on children is unconscionable. I call on the United States to immediately end the practice of forcible separation of these children," Zeid said in his final speech to the 47-member Council before his term in office ends.
court finds that a provision is substantively unconscionable, it can
And in the meantime, there's no indication that Abbott will back down in the fight against what he refers to as an "unconscionable" land grab.
"We think it's unconscionable, and unfair to the GA public." With the issue unresolved as Congress took a break in August, Pelton said he hoped for another chance to address the reforms in September, via the FAA reauthorization process.
said the decision to exclude the names of the SAF troopers that originally made it to the PNP's Medal of Valor list was "unconscionable."
Add to this the spectacle of the two atheists Ed Miliband and Nick Clegg singing hymns of praise to a God they do not even believe exists and it raises a pertinent question: How can any educated person think this anything but an unconscionable waste of time?
Given defendants' fiduciary duty as well as the defects in the presentation and language of the agreement, even accepting arguendo that the agreement was "prominently displayed," defendants have failed to establish that the agreement was not procedurally unconscionable.
The hard-hitting criticism came as Mr Justice Weir granted bail to a man accused of assault due to "unconscionable" delays in progressing the case.
To determine whether a contract is procedurally unconscionable under Florida law, courts must look to: (1) the manner in which the contract was entered into; (2) the relative bargaining power of the parties and whether the complaining party had a meaningful choice at the time the contract was entered into; (3) whether the terms were merely presented on a "take-it-or-leave-it" basis; and (4) the complaining party's ability and opportunity to understand the disputed terms of the contract.