The central question in the procedural unconscionability
analysis is whether the complaining party lacked a meaningful choice when entering into the contract.
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.
While consumer plaintiffs lawyers saw the unconscionability
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.
A claim of unconscionability
includes both procedural and
The law typically understands substantive unconscionability
to work by releasing imprudent bargainers from their voluntarily assumed obligations.
After Rent-A-Center, it is almost impossible for a party to challenge a one-sided arbitration clause on unconscionability
grounds, no matter how unfair it is.
68) Many courts have struck down arbitration clauses because of procedural and substantive unconscionability
313) Leff appreciated that contract theorists had, in the 1940s, shaped concepts such as duress, fraud, and unconscionability
as part of the development of the doctrine of "contracts of adhesion;" Leff thought these arguments innovative but the wrong approach ("totally irrelevant" (314)) to materials that were not themselves contracts.
it was entered into under duress, or on unconscionability
grounds if the
which attracts the intervention of equity is the defendant's failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)].
137) Additionally, although contra proferentem often works in tandem with the doctrine of unconscionability
to protect fairness in the contracting process, (138) unconscionability
defenses are not always available in arbitrability disputes.
After an introduction to the contract curve and expectation damages, chapters cover consideration and exchange, contract formation, and unfairness and unconscionability
, along with contract interpretation, performance and breach, mistake and impossibility, remedies, and third party beneficiaries.
41) As Gilbert argues, "EULAs regulatory framework is fraught with problems", primary among which is that "the developers' superior bargaining strength results in a stilted EULA that is susceptible to the unconscionability
doctrine", (42) which commonly involves two tests, procedural and substantive unconscionability