Unconscionability (in contract law) (Ro.: inechitate, Fr.: iniquité, n.f., Gr.:  καταχρηστικότητα, Cz.: nepřiměřenost ujednání ) (See also: inequality of bargaining power) = refers to the hypothesis in which one of the parties is clearly disadvantaged compared to the other party, and could not reasonably agree to conclude a contract under such circumstances. 

Unconscionability includes both procedural unconscionability (which is displayed during the formation of the contract), and substantive unconscionability (which supposes the actual imbalance in the performance of the parties). If the contract is found unconscionable, it cannot be enforced. 

Unconscionable agreement/ contract (Ro.: contract ce conţine clauze abuzive/ nerezonabile, Fr.: convention inique, n.f.) = an agreement concluded by means of coercition, duress, or fraud, in which there is a significant imbalance in the rights and obligations of the parties, arising under the contract.

~ clause (Ro.: clauză abuzivă/ nerezonabilă, Fr.: clause léonine, n.f.) = a clause whose provisions impose heavier performance on one of the parties concluding the contract, or which is contrary to legal standards. For example, a clause releasing one party from the consequences of its intentional torts would be considered unconscionable. 

~ conduct (Ro.: conduită frauduloasă, Fr.: conduite inique, n.f.) = a party’s unreasonable and unfair conduct, which might presume undue influence, coercition, duress, or fraud.


Useful links

Legislation - Uniform Commercial Code, § 2-302, USA [English] - 2006 Ohio Revised Code- 1302.15 (UCC 2-302), USA [English] – Code of Virginia, § 8.2-302, USA [English]

Case Law - Lloyds Bank Limited v. Herbert James Bundy, [1974] EWCA Civ 8, England and Wales Court of Appeal (Civil Division) Decisions, UK - Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (C.A. D.C. 1965), USA - Harry v. Kreutziger, Court of Appeal for British Columbia, 1978, Canada – Commercial Bank of Australia v. Amadio, High Court of Australia, 1983, Australia

Online Publications - Unconscionable Conduct, Australian Contract Law – Morley, Paul M., 1968, Commercial Decency and the Code – The Doctrine of Unconscionability Vindicated, William & Mary Law Review - Concept of unfairness unconscionability, Law Teacher - The concept of unconscionability, Maine Law Review – Brown, M. Neil, Biksacky, Lauren, 2013, Unconscionability and the contingent assumptions of contract theory, Michigan State Law Review - Unconscionability, National Paralegal College, National Juris University - Marrow, Paul Bennett, 2000, Contractual Unconscionability: Identifying and Understanding Its Potential Elements, Columbia University


Mann, Richard, Roberts, Barry, 2012, Essentials of Business Law and the Legal Environment, 11th edition, USA, Cengage Learining, pp. 323-324

Zelst, van Bastiaan, 2008, The Politics of European Sales Law: A Legal-political Inquiry Into the Drafting of the Uniform Commercial Code, the Vienna Sales Convention, the Dutch Civil Code and the European Consumer Sales Directive in the Context of the Europeanization of Contract Law, the Netherlands, Kluwer Law International, pp. 72-74


By Mădălina Moldovan