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9 Cards in this Set

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  • Back
in order to prove that a K is unconscionable to enforce,
the courts look at two things at the time of contract
(a) Procedural uncoscionability- unequal bargaining power at the time of formation
(take it or leave it K)

(b) Substantiv unconscionability- deals with how harsh the terms are. In some instances,
you only need this w/o procedural unconscionability
Williams v. Walker Thomas- P gets in installment payment K when she buys $1800 worth of stereo equipment. The P’s K indicated that no title was to be given to purchaser until the balance was paid off completely. Any default can result in repossession. P had $164 left to pay off when she defaulted. D repossessed. Courts said this K unconscionable, both procedurally and substantially. P wins.
UCC 2-302 unconscionable K or clause
UCC 2-302 unconscionable K or clause- if the court finds a K to be unconscionable;
- (1) it may refuse to enforce the K
- (2) it may enforce the rest of the K w/o the unconscionable clause.
- (3) it may limit the application of the unconscionable clause to avoid an unconscionable result.
These rules also apply to restatement 208
an unforeseen, unexpected event that makes performance
of a promise impossible b/c a person or a thing essential to
to the K has become incapacitated or has died.

Under the UCC, it is when commercial impracticability occurs.
Example of impossibility-
There is big concert at skydome, Shania is coming to town. But, the Skydome burns down and there are no more stadiums available to seat 50,000 fans. Shania or concert producers can use impossibility.
Example of impossibility
Construction scenarios- if there is a new construction taking place, the contractor bears
The risk of loss. If renovations are taking place, the risk of loss
Are assumed by the owner of the property.

Force Majeure Clause- excuse performance for named events. outlines what is to happen if a K is hindered by an act of God.
Usually used by a party to relieve them from liability for
Acts of God. (put in K at the time of formation or it’s no good).
(9) Frustration of Purpose
The K is not impossible to perform, but the underlying
purpose of the K is no longer true. You need to keep Karell
REFORMATION- we reform a K to make it comport with to the true intent of the
parties. Once you use an avoidance doctrine, you can couple it
with reformation.
Recidision- that you put the K aside