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Unconscionability of Contracts

Unconscionability refers to the appropriateness of contracts. Contracts can be deemed unconscionable (i.e., offensive to conscience) if they are grossly one sided, exploitative, or unfair. Unconscionable is a term of moral opprobrium that carries with it legal significance. If a court deems a contract to be unconscionable, it can choose not to enforce it.

Unconscionability can be understood procedurally, as a defect in the bargaining process that produced the contract, or substantively, as a defect in the terms of the contract, or both. On the procedural understanding, one side has vastly more bargaining power and has used it to coerce the other side. On the substantive understanding, the contract’s terms are exceptionally harsh or unfair to one side.

Since contracts lie at the heart of commerce, unconscionability ...

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