Q–‘Unconscionability’ sounds like fraud; what is it?

Texas Collection attorneys will sometimes see the defense called ‘unconscionability’. Generally either in collection or factoring litigation, a contract can be deemed unconscionable if it is unfair because of the overall or gross one-sidedness of the contract terms. 

There are two main issues associated with unconscionability, being first, how the parties arrived at the contract terms, and whether there is some legitimate commercial reason justifying the terms of the contract.  The discussion about how the parties arrived at the contract terms addresses the “procedural aspect” of unconscionability, whereas the discussion about the “legitimate commercial reasons”, is a substantive aspect. 

A defendant will bear the burden of proving either a procedural aspect or substantive aspect of unconscionability, and of course this defense  must be pleaded under Rule 194.

Q—where does ‘fairness’ come into play?

Regarding whether there is a legitimate commercial reason justifying the contract terms, this focuses mainly on the fairness of the contract.  If it is utterly lopsided or there is no reasonable parity between the values exchanged, it will appear to be substantively unconscionable. 

As to procedural unconscionability, the court is looking at the parties assent and all the facts surrounding the bargaining process.  If the court senses oppression or unfairness, this taints the negotiation process in the contract negotiation. 

There are other factors which court will look at in Dallas factoring contract decisions, such as the presence of deception, or some unethical business practice.  Also, if one party appears to have absolutely no bargaining power, or ability to change the contract, and this would be a factor present in ‘adhesion contracts’, which is actually a standard contract usually used for consumer transactions and looks like a ‘take it or leave it’ sort of contract, in which the consumer has no real bargaining rights and is obtaining goods or services only by acquiescing to the contract terms.