Similar to undue influence and duress, unconscionability also involves actions performed between two parties one being weak and the other dominating the weaker party. Unconscionable conduct is neither supported by the court of equity nor by the legislation of the country. Unconscionability not being restricted to a definite legal meaning has a wider scope than unfair or harsh behaviour. Behaviour of parties involved in a commercial contract is considered to be unconscionable when a party is harsh, despotic or deliberately misbehaves with another party. The court while evaluating the behaviour of parties in a contract considers both the aspects i.e. the behaviour of: seller or supplier of good or services and the buyer or the acquirer of goods and services. There are various elements that the court takes into account for determining whether the conduct is unconscionable or not.
Elements of Unconscionability
There various elements that makes a conduct unconscionable, such as if the dominant party uses undue influence, unfair means or pressurises the weaker party. The documents been used during the transactions have to be clearly understood by the weaker party. The level to which the parties acted in good faith and industry rules that the parties follow also the factors. Some other elements of unconscionability include the behaviour of the stronger party towards negotiating, any such conditions that have been enforced on the weaker party by the stronger party that are not necessarily required for the legal benefit of the latter.