Restatement - REST 2d CONTR 208 Restatement(Second of...

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REST 2d CONTR § 208 Page 1 Restatement (Second) of Contracts § 208 (1981) Restatement of the Law — Contracts Restatement (Second) of Contracts Current through August 2010 Copyright © 1981-2010 by the American Law Institute Chapter 9. The Scope Of Contractual Obligations Topic 2. Considerations Of Fairness And The Public Interest § 208. Unconscionable Contract Or Term 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. Comment: a. Scope. Like the obligation of good faith and fair dealing ( § 205 ), the policy against unconscionable contracts or terms applies to a wide variety of types of conduct. The determination that a contract or term is or is not unconscion- able is made in the light of its setting, purpose and effect. Relevant factors include weaknesses in the contracting process like those involved in more specific rules as to contractual capacity, fraud, and other invalidating causes; the policy also overlaps with rules which render particular bargains or terms unenforceable on grounds of public policy. Policing against unconscionable contracts or terms has sometimes been accomplished “by adverse construction of language, by manipulation of the rules of offer and acceptance or by determinations that the clause is contrary to public policy or to the dominant purpose of the contract.” Uniform Commercial Code § 2-302 Comment 1. Particu- larly in the case of standardized agreements, the rule of this Section permits the court to pass directly on the uncon- scionability of the contract or clause rather than to avoid unconscionable results by interpretation. Compare
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