unconscionability and exculpation

It seems there is a continuum of relative conscionability. It moves from fairness on the one end to taking gross advantage on the other.

The test of unconscionability is two fold:

First, is there an absence of meaningful choice? As part of this consideration, look at the relativity of bargaining power. It is most common to see gross inequality in the power to bargain when one party is a consumer and one is a larger business entity, or perhaps an employer and employee. Additionally, did the weaker/adhering party have a reasonable opportunity to understand the terms of the contract? This prong of the test looks at procedural unconscionability.

The second test is whether the terms are unreasonable or unfair-a one-sided bargain is itself evidence of the inequality of the bargaining process.

This second test raises a question about what the difference is between a well negotiated contract and taking unfair advantage. Hence the continuum- on each end of the spectrum, there is no difficulty in determining the conscionability of the terms and the outcome. It is in the middle that it gets murky.

I would like to think that if I were the party who had negotiated a good deal for myself, that the courts would not interfere with my right to contract. On the other hand, if I, as an unsophisticated consumer, were unaware of some hidden language, or misunderstood its meaning, I would like to know that principles of fairness would prevail.

To exculpate is to excuse or find blameless. Try to use that in a sentence tomorrow and then let me know how that worked out.