Duress or coercion are usually factors taken into account for the doctrine of procedural unconscionability, but courts will still look to such factors in any contractual dispute to determine if the contract itself is enforceable. Duress occurs if one party threatens the other party into signing the agreement. Coercion exists if one party was forced into signing the agreement. While such terms seem interchangeable, they are quite different in terms of how courts determine if a contract is valid or not.
You should do your best to fully understand all of the contractual rights under the agreement before entering into it. Ensure that you are aware of contract law, and what rights you have if a contractual dispute arises between you and the other party.
Understand the elements of entering into a contract. Such elements include the offer, acceptance, consideration, mental capacity, substantive legal subject matter, consent, and mutual understanding. If during the procedural steps of entering into a contract, you are offered something, you must accept it.
For example, unconscionable language consists of terms or phrases that the average person would not understand. This lack of understanding would then be glossed over by the perpetrator in his attempt to have the other party sign a contract that he would not have agreed to, had he more fully understood what he was signing.
Without seeking the assistance of an attorney, the average person may not understand what he is agreeing to, but may agree to it anyway due to a lack of education on the subject, or the belief that he will not find a better deal elsewhere.
Unconscionable conduct is typically found in cases that involve fraud or deception. This is because one party deliberately misrepresents the facts to deprive someone else of something valuable, such as money or property. In effect, the person exhibiting the unconscionable conduct is stealing from, or otherwise taking advantage of, the other person.
Unconscionable conduct can be punished as either a criminal fraud, or with a civil action. A contract is more likely to be found to be unconscionable if it contains both unfair bargaining practices and one-sided terms. A contract is considered unconscionable when the person drafting the contract was acting with unconscionable conduct at the time the contract was being drafted.
The fact that events may transpire later on that provide one party with more of an extreme benefit than the other is irrelevant, and do not make for an unconscionable contract. Unconscionability must exist at the time the contract is drafted in order for the contract to be declared void, and for the drafter to be punished accordingly. There are no set guidelines insofar as determining whether a contract is unconscionable.
Particularly, the state of Nevada will use a sliding scale for unconscionability, and has stated that the more procedurally unconscionable the contract is, the more apt it will be to find the contract void. Therefore, it will usually look at the procedural concept rather than the substantive terms of the agreement. Other courts might determine that the entire contract is void, particularly for instances of illegality, duress, and coercion.
If this is the case, the parties will be free to walk away as if the contract never existed in the first place. Learn More About procedural unconscionability. Share procedural unconscionability Post the Definition of procedural unconscionability to Facebook Share the Definition of procedural unconscionability on Twitter.
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