+ Preliminarily, I’m a retired-for-now attorney but still have a valid/current “inactive” license to practice law in Amazonia, er, the District of Columbia. From 1996-2015, I primarily practiced in employment/labor/human resources law, equally split between advising managers/HR and litigation, including 20(ish) non-jury trials and arbitration proceedings. For reasons too complex to go into, the employment law defense side has tremendous advantages and I/we “won” 95% of the time considering outright dismissal and cheap settlements..
+So I rarely ventured into “contract law” and flat-out lost the one “business contract” arbitration I co-handled with my attorney father back in 2005. (We were robbed! And our client was bonkers to boot!) But I liked and remember to this day much of the Uniform Commercial Code, which all U.S. states have adopted as verbatim law.
+ You “theoretically” can file a lawsuit seeking to revoke/render unenforceable on the grounds of unconscionability any contract. I’ll quote from a 2008 article:
“The unconscionability doctrine is premised on the idea that the law should be fair and should not allow people to be taken advantage of. Unconscionability is used as a shield and not a sword, meaning that it is a defense to liability, not a cause of action for damages or other affirmative relief. While it clearly has its place in modern commerce, the doctrine is both vague and hard to establish. As a result, it should be asserted strategically. The doctrine of unconscionability, codified in Section 2-302 of the U.C.C., permits courts to invalidate whole contracts, or particular provisions in contracts, they find fundamentally unfair. The section provides that:
If the court as a matter of law finds the contract or any clause in the contract to have been unconscionable at the time the contract was made the court can refuse to enforce the contract, or it may enforce the remainder of the contract, without the unconscionable clause, or it may so limit the application of any unconscionable clause s to avoid any unconscionable result.
Commentators have complained about the doctrine’s imprecision for years, and as a result, courts use the doctrine with considerable restraint. This means litigants must be realistic in using the doctrine, and also should be ready to be perceived as having a weak case, merely by asserting claims under Section 2-302. After all, Section 2-302 is designed not to be the primary tool for avoiding contract enforcement but rather to be a safety net to catch situations that fall outside the other mechanisms.
Contexts in which Section 2-302 has been successfully used are quite varied. In one case, a consumer purchased a windshield and the terms of the payment were misrepresented. In another case, after the purchase of faulty pipe, the court found a limitation on liability to replacement and exclusion of consequential damages unconscionable.
