An Excellent Unconscionability, Adhesion, Rescission, Unenforceability and Arbitration Appeals Court Case
By Daniel Edstrom
DTC Systems, Inc.
This appeals court case, FOR PUBLICATION, provides an excellent discussion of unconscionable contract terms. Although this case does not relate to mortgage loans, it does discuss this as a contractual issue.
Excerpt 1
Turning to the case at hand, we first address petitioners’ argument the mandatory arbitration provisions contained in their franchise agreements were unconscionable and therefore unenforceable. The doctrine of unconscionability is a judicially created doctrine which was codified in 1979 when the Legislature enacted Civil Code section 1670.5. (Armendariz v. Foundation Health Psychcare Services, Inc, supra, 24 Cal.4th at pp. 113-114.) That section provides in relevant part, “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract . . . .” (Civ. Code, § 1670.5, subd. (a).) While the statute does not attempt to precisely define “unconscionable,” there is a large body of case law recognizing the term has “both a procedural and a substantive element, both of which must be present to render a contract unenforceable. [Citation.] The procedural element focuses on the unequal bargaining positions and hidden terms common in the context of adhesion contracts. [Citation.] While courts have defined the substantive element in various ways, it traditionally involves contract terms that are so one-sided as to ‘shock the conscience,’ or that impose harsh or oppressive terms. [Cit ation.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App. 4th 1199, 1212-1213.)
Both elements need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 114.) Additionally, a “claim of unconscionability often cannot be determined merely by examining the face of a contract, but will require inquiry into its [commercial] setting, purpose and effect.” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 926.) Continue reading “An Excellent Unconscionability, Adhesion, Rescission, Unenforceability and Arbitration Appeals Court Case”
This week, I stood with Assembly Speaker John Pérez and Senate President pro Tem Darrell Steinberg to introduce the California Homeowners Bill of Rights, which will bring fairness and transparency to mortgages in our state.
