Читать книгу Canadian Business Contracts Handbook - Nishan Swais - Страница 57

Unconscionability generally arises in situations of unequal bargaining power and results in one party being unfairly prejudiced by another. If performance of a contract would be unconscionable, then a court might invalidate it (or a term of it) on that basis.

Consumer contracts which reflect a “take it or leave it” approach to business are sometimes invalidated — or certain terms are invalidated — on the basis of being unconscionable. For example, consider the elderly Ms. Johnson who does not own a computer but suddenly finds she unwittingly signed up for unlimited Internet access. As it happens, she only contacted her cable company to purchase phone service but wound up being talked into purchasing a phone and Internet package together. In those circumstances, a court would likely decide that it would be unconscionable to enforce the contract against Johnson or at least that portion that related to the Internet services.

The test that a court would apply in determining unconscionability is whether it would be reasonable to enforce the contract in light of standard commercial practices and considering what parties bargaining freely on equal terms might have done.

It is rare that businesses (as opposed to private consumers such as Johnson) will be able to successfully have a contract invalidated on the basis of unconscionability. The courts are not in the business of regulating markets. Moreover, inequality of bargaining power is a fact of business life. In the end, a court will not substitute its business judgment for yours. You should, therefore, always ensure that if you are faced with a “take it or leave it” option, you simply leave it when it makes sense to do so.