Sales and Leases | 86
whole, with virtually no room to negotiate. [ See adhesion contract , Black’s Law Dictionary (11th ed. 2019) (citing E. Allan Farnsworth, Contracts § 4.26, at 296–97 (3d ed. 1999)).]
b. Boilerplate Terms Conceptually, boilerplate terms are quite similar to contracts of adhesion. Indeed, the two normally go hand in hand. Boilerplate terms embrace fixed or standard contract language, usually preprinted, that the drafting party sees as more or less nonnegotiable. [ Boilerplate , Black’s Law Dictionary (11th ed. 2019).] 2. Unconscionability as Dependent on Context The unconscionability defense depends very much on context. The test is applied not in isolation, but rather considering the contract’s commercial setting, purpose, and effect. Thus, the question is not whether the contract or any of its provisions are unconscionable in the abstract, but whether they are unconscionable “according to the mores and business practices of the time and place.” [ Sanchez v. Valencia Holding Co., LLC , 353 P.3d 741 (Cal. 2015) (internal quotes omitted).] 3. Basic Test for Unconscionability The essential question in unconscionability cases is “whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing” when the contract was made. [U.C.C. § 2-302, cmt. 1 (1950).] The main idea behind the doctrine is to prevent oppression and unfair surprise. To that end, there are two overarching types of unconscionability: (1) procedural unconscionability and (2) substantive unconscionability. In theory, perhaps, either type standing alone should suffice to find unconscionability. Under the prevailing view, courts require both before declaring all or part of a contract unconscionable. As one court put it, both must be present, but not necessarily to the same degree. Thus, a court may find unconscionability if one type predominates, so long as both are noticeably present. [ See U.C.C. § 2-302, cmt. 1 (1950); Sanchez v. Valencia Holding Co., LLC , 353P.3d 741 (Cal. 2015); 2 Hawkland UCC Series §§ 2-302:1, 2-302:2, Westlaw (database updated June 2021).] a. Relationship between Unconscionability and Other Contract Defenses Unconscionability is a distinct contract defense from duress, misrepresentation, undue influence, and so on. Even so, oftentimes, circumstances and conduct giving rise to an unconscionability defense at least hearken or hint to other defenses of these types, even if the circumstances and conduct do not quite rise to the level of those other defenses. [2 Hawkland UCC Series § 2-302:3, Westlaw (database updated June 2021).]
Made with FlippingBook - Online Brochure Maker