I wrote: > It seems to me the doctrine of u > nconscionability > could be used by IH in their defense although it would be inconsistent > with their claim of having performed due diligence. > > Actually, it says only a judge can rule on unconscionability and since the trial (I think) is by jury this defense could be not be used.
Harry > > > https://en.wikipedia.org/wiki/Unconscionability > > > << > Unconscionability > > (sometimes known as unconscionable dealing/conduct in Australia) is a > doctrine in contract law that describes terms that are so extremely unjust, > or overwhelmingly one-sided in favor of the party who has the superior > bargaining power, that they are contrary to good conscience. Typically, an > unconscionable contract is held to be unenforceable because no reasonable > or informed person would otherwise agree to it. The perpetrator of the > conduct is not allowed to benefit, because the > > consideration offered is lacking, or is so obviously inadequate, that to > enforce the contract would be unfair to the party seeking to escape the > contract. > > > Unconscionability is determined by examining the circumstances of the > parties when the contract was made, such as their bargaining power, age, > and mental capacity. Other issues might include lack of choice, superior > knowledge, and other obligations or circumstances surrounding the > bargaining process. Unconscionable conduct is also found in acts of fraud > and deceit, where the deliberate misrepresentation of fact deprives someone > of a valuable possession. When a party takes unconscionable advantage of > another, the action may be treated as criminal fraud or the civil action of > deceit. > > For the defense of unconscionability to apply, the contract has to have > been unconscionable at the time it was made; later circumstances that make > the contract extremely one-sided are irrelevant. There are generally no > standardized criteria for determining unconscionability; it is a subjective > judgment by the judge, not a jury, and is applied only when it would be an > affront to the integrity of the judicial system to enforce such a contract. > Upon finding unconscionability a court has a great deal of flexibility on > how it remedies the situation. It may refuse to enforce the contract > against the party unfairly treated on the theory that they were misled, > lacked information, or signed under duress or misunderstanding; it may > refuse to enforce the offending clause, or take other measures it deems > necessary to have a fair outcome. Damages are usually not > > awarded. > >> > > > >
