test of "unconscionability" of contract is whether under circumstances
existing at time of making of contract and in light of general commercial background
and commercial needs of particular trade or case, clauses involved are so one-sided
as to oppress or unfairly surprise party. Division of Triple T Service, Inc. v.
Mobil Oil Corp., 60 Misc.2d 720, 304 N.Y.S.2d 191, 201. Unconscionability is generally
recognized to include an absence of meaningful choice on the part of one of the
parties, to a contract together with contract terms which are unreasonably favorable
to the other party. Gordon v. Crown Central Petroleum Corp., D.C.Ga., 423 F.Supp.
58, 61. Typically the cases in which unconscionability is found involve gross
overall one-sidedness or gross one-sidedness of a term disclaiming a warranty,
limiting damages, or granting procedural advantages. In these cases one-sidedness
is often coupled with the fact that the imbalance is buried in small print and
often couched in language unintelligible to even a person of moderate education.
Often the seller deals with a particularly susceptible clientele. Kugler v. Romain,
58 N.J. 522, 279 A.2d 640.
Code. (1) If the court as a matter of law finds the contract or any clause
of the contract to have been unconscionable at the time it was made the court
may refuse to enforce the contract, or it may enforce the remainder of the contract
without the unconscionable clause, or it may so limit the application of any unconscionable
clause as to avoid any unconscionable result. (2) When it is claimed or appears
to the court that the contract or any clause thereof may be unconscionable the
parties shall be afforded a reasonable opportunity to present evidence as to its
commercial setting, purpose and effect to aid the court in making the determination.
U.C.C. § 2-302.
Section 2-302 should be considered in conjunction with
the obligation of good faith imposed at several places in the Code. See e.g.
U.C.C. § 1-203.
Restatement of Contracts. 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. Restatement of Contracts, Second,
(Tent.Draft) § 234.
Unconscionable bargain. An unconscionable bargain
or contract is one which no man in his senses, not under delusion, would make,
on the one hand, and which no fair and honest man would accept, on the other.
Hume v. U. S., 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393. See also Unconscionability.
— Black's Law Dictionary
© 1979 West Publishing Co.