Group unconscionability?? : LUSENET : Lessig's Contracts : One Thread

OK, in the Williams case (part 2) the court reverses and remands to the trial court on the question of whether the contract is unconscionable. This is because the determination of unconscionability is a factual one and should be determined "according to the mores and business practices of the time and place." Understood. But what if all of the stores in the area had similar types of contracts??? The above test seems to indicate that unconscionability only exists when in reference to, and in contradiction with, some standard practice. But what if the standard practice itself is objectively unconscionable? Relief????

-- Anonymous, November 23, 1998


One possibility comes from the Perdue case, where the court says (on p. 630):

"The cases do not support defendant's contention that a price equal to the market price cannot be held unconscionable. While it is unlikely that a court would find a price freely set by a freely competitive market to be unconscionable [cite omitted], the market price set by an oligopoly should not be immune to scrutiny."

Taking the market price as an example of the "mores and business pratices", the court seems to same market conditions could lead to general unfairness, and this would be a ground for finding unconscionability.

There may be and probably are other ways to argue for relief as well...

-- Anonymous, November 24, 1998

Moderation questions? read the FAQ