unconscionability per restatement 208

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thatguy99
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Joined: Mon Dec 28, 2009 7:17 pm

unconscionability per restatement 208

Postby thatguy99 » Wed Nov 03, 2010 12:23 am

I was doing one of my contract professors hypo's and i wanted to get some input on issues related to unconscionabilty....in part of the hypo a clause in an internet provider contract reserved the right to modify the contract in any way it deems appropriate, that it would post any changes on its web site or some other location, and that the subscriber’s continued use of the service constituted agreement to the modification.

Basic test of "unconscionability" of contract is whether under circumstances existing at time of making of contract and in light of general commercial background and commercial needs of particular trade or case, clauses involved are so one-sided as to oppress or unfairly surprise party.

I'm not to sure how to analyze this hypo in terms of unconscionability. In terms of procedural unconscionability he assented to the terms of the contract. There seem to be no real defect in the bargain process. However, it appears substantively unconscionable as it gives the provider a gross advantage in being able to modify the contract as they seemed fit. This also however may be normal given the "commercial background"

I'm not sure if my understanding of unconscionability is right. If anyone can help me out that would be great

I hope this all makes sense

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dailygrind
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Joined: Wed Oct 22, 2008 11:08 am

Re: unconscionability per restatement 208

Postby dailygrind » Thu Nov 04, 2010 12:30 am

i'm not sure, so i'm gonna bump it up, and ask something else as well:

does anyone know if there's any procedural unconcionability in the modified contract of this hypo? we didn't spend a long time on modification, but i was under the impression that modifications to a contract were essentially new contracts requiring assent, and in this hypo the assent is close to nonexistent, which would fulfill the procedural and substantive unconcionability usually required.




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