Unconscionable

Unconscionable is an adjective meaning contrary to good conscience; in law it refers to terms or conduct that are unjust or excessively unfair. In contract law, unconscionability is a defense or ground for refusing to enforce all or part of a contract or clause. Courts typically require a showing of both procedural and substantive unconscionability.

Procedural unconscionability concerns the way a contract was formed and the presence of elements such as hidden terms, lack of meaningful choice, excessive pressure, or exploitation of a party’s vulnerability. Substantive unconscionability concerns the content of the terms themselves, for example those that are extremely one-sided, create excessive risk for one party, or impose oppressive or unjust penalties.

The analysis is usually undertaken at the time of contracting, not after enforcement begins. If a court finds unconscionability, it may refuse to enforce the problematic clause, strike or modify the term, or, in some cases, rescind the contract entirely.

Jurisdictionally, unconscionability is a common-law concept in many jurisdictions, with variations in standard and remedies. In some systems the concept is anchored in equity; in others it is supported by consumer-protection or contract-law statutes. In practice, unconscionability frequently arises in consumer, mortgage, or employment contracts and in standard-form or “take-it-or-leave-it” terms. Critics note the doctrine can be unpredictable and highly fact-specific, while proponents view it as a necessary check against exploitation in bargaining.