process leading to “unfair surprise” o Assent was not sufficiently knowing o Absence of meaningful choice, superior bargaining
o Assent was not sufficiently voluntary Examples: unfair surprise resulting from misrepresentation, fine print, ambiguous contract language, failure to read the written contract, old age, young age, mental infirmity, lack of intelligence, sophistication, education or legal advice. Unconscionability is a defense useful in situations where some elements of other defenses exist but the others will not be successful, residual category. Substantive unconscionability - contract terms that are oppressive, unduly harsh, commercially unreasonable, or grossly unfair. It is about the process of reaching a deal; substantive unconscionability is about the results (the terms of the contract) Focuses on the one-sidedness of the contract Review of contracts terms at the time of formation Gross overall imbalance in consideration Not simply because you are disappointed Adhesion Contracts- standard form of contract offered to a person with little bargaining power on a “take it or leave it” basis. Not automatically unenforceable, voidable, or void. Rather a specific doctrine must render it unenforceable, voidable, or void. A court can consider ratification when deciding whether to exercise its discretion to not enforce an unconscionable contract. Class 13: Impracticability of Performance General rule : Contract liability is generally strict liability, meaning that a promisor is usually liable for breach of contract even if, in breaching the contract, she failed to perform because performance was impossible or more difficult than expected. Often an event that makes it difficult or impossible for a party to perform as promised was one the parties did not foresee or know of at the time of contract formation, and the parties therefore did not address the effect of the event’s occurrence on the parties rights and duties. Contract has a gap. Traditional rule, courts would not use a reasonable implied in law term to fill, modern rule, they would. Force-majeure clause - an express agreement providing that a party’s nonperformance will not be excused as a result of a particular event (or any event) is essentially a guarantee or warranty (you may also think of it as a waiver of the power to rely on the impracticability default rule) Supervening impracticability : When the parties do not expressly or impliedly agree in the contract about the effect on a party’s duty of an event the parties did not expect to occur, the following default rule applies: A party’s duty to perform is discharged where the party proves the following: 1. an event that neither party expected to occur occurs after the contract’s formation and before the party’s duty to perform is due;
2. the event makes the party’s performance of the duty impossible or impracticable; and 3. the party should not, as a matter of law, bear the risk of the event’s occurrence. Restatement (Second) of Contracts § 261; U.C.C. § 2-615. Existing impracticability
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- Spring '02
- Contract Law, SOF