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Unreasonableness vs Unconscionability

In the vast landscape of legal terminology, two terms frequently encountered, often interchangeably but with distinct implications, are unreasonableness and unconscionability. However their distinctions serve as vital safeguards against unfairness and injustice. While they both serve to evaluate the fairness and validity of contracts or actions within the realm of law, their applications and thresholds differ significantly.


Unreasonableness: A Measure of Rationality

Unreasonableness, as the term suggests, concerns itself with the rationality, fairness, and justifiability of actions or decisions within the legal framework. It is a standard applied to assess whether a particular term or clause in a contract conforms to fundamental principles of fairness, good faith, and public policy.


In contract law, an unreasonable clause may be one that egregiously favours one party over the other, deviates from customary industry standards, or imposes burdensome obligations disproportionate to the benefits conferred. Moreover, the circumstances surrounding the formation of the contract, including the relative bargaining power of the parties and any instances of coercion or deception, are pivotal considerations in determining unreasonableness.


For instance, a contract clause that requires a consumer to waive all legal rights without adequate notice or understanding could be deemed unreasonable. Similarly, terms that contravene established legal norms or public policy objectives, such as those promoting consumer protection or prohibiting discrimination, may be vulnerable to scrutiny for unreasonableness.


Unconscionability: Beyond Mere Unreasonableness

Unconscionability transcends mere unreasonableness, embodying a heightened standard of unfairness that shocks the conscience or violates notions of equity and justice. While unreasonableness focuses on the individual terms or clauses within a contract, unconscionability considers the broader context and circumstances surrounding its formation and enforcement.


A contract or clause may be deemed unconscionable if it exhibits a gross imbalance in bargaining power, exploits the vulnerability or ignorance of one party, or imposes oppressive terms that render the agreement fundamentally unfair. Unlike unreasonableness, which primarily assesses the substance of contractual provisions, unconscionability scrutinises the process by which the contract was negotiated and whether one party took undue advantage of the other's weaker position.


Courts tasked with evaluating unconscionability may examine factors such as the parties' respective sophistication and experience, the presence of unfair tactics or sharp dealing, and the extent to which the terms of the contract deviate from prevailing industry standards or societal norms. Contracts found to be unconscionable may be rendered void or unenforceable, or courts may opt to sever or modify the unconscionable provisions while upholding the remainder of the agreement.


In summary, while unreasonableness pertains to the fairness and rationality of individual contract terms, unconscionability encompasses a broader assessment of the contract's overall fairness and the circumstances surrounding its formation and enforcement. Both concepts play indispensable roles in upholding the principles of fairness, equity, and justice within the legal landscape.


Check out our exam-focused Contract Law and Public Law notes now.

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