Breaking Bad (Contracts)


Breaking or re-negotiating a contract, even a bad one, is seldom easy. Often, contracts are drafted by attorneys to legally bind parties to honor the original agreement. However, in certain circumstances, there may be a legitimate and legal way to avoid enforcement of an unduly oppressive contract if a term is unconscionable. Here's the deal:

An unconscionable term is one that is so one-sided that it is unenforceable under the law. When the terms of a contract are remarkably unfair or when the bargaining process or the provisions "shock the conscience," the court may invalidate the contract. In Florida, a clause is unconscionable if: (1) it includes a lack of meaningful choice for one of the parties (i.e., it is "procedural unconscionable"); and (2) contract terms that unreasonably favor the other party (i.e., it is "substantive unconscionable"). You must prove both procedural and substantive unconscionability to successfully prevent the enforcement of the provision.

While both aspects of procedural and substantive unconscionability must be established, they do not have to be equally demonstrable. Florida courts use a “balancing test" to weigh the presence of both factors. Where the contract terms are extremely oppressive, less evidence of procedural unconscionability is needed to establish the unenforceability of the contract, and vice versa.

By their very nature, certain standard-form contracts (known as adhesion contracts) are closely scrutinized for unconscionability. This is because the terms and conditions of the contract are set by one of the parties and the other party has little or no ability to negotiate more favorable terms. The scenario is often seen in click-wrap agreements and contracts for gym memberships, cellular services and consumer finance. So, if you entered into a deal with no ability to negotiate, or if the negotiation resembled that of the scene in Breaking Bad where Walt Whitman in browbeat fashion quipped, "We're done when I say were' done," chances are the court will take a close look as to whether any of the provisions are unconscionable.

Even so, courts will not invalidate or re-write contracts simply because one party did not read the fine print. As a general rule, parties will be bound to the agreements they make. But, in those circumstances where something is truly amiss, the doctrine of unconscionability can be an invaluable tool to escape unjust results or trigger the re-negotiation of a contract.

DISCLAIMER: Jackson Lee | PA appreciates you visiting this website. Please remember that this information is based on general facts and might not apply to specific factual situations. Please do not consider this information to be specific legal advice. Always consult a lawyer to apply the law to your specific facts and state.