MBE Rules · Contracts
Unconscionability
UCC §2-302
The rule
A court may refuse to enforce a contract, or any clause of it, if it was unconscionable at the time of formation. Requires both procedural unconscionability (defects in the bargaining process — e.g., gross inequality of bargaining power, hidden terms) AND substantive unconscionability (grossly unfair terms).
In plain English
A contract won't be enforced if it was unfair when made, both in how it was agreed to and in its terms.
Worked example
A buyer signs a contract with a seller who used confusing language and included a clause charging triple the market rate. The court finds this unfair and won't enforce the high charge.
Memory hook
Unconscionability: Power play + Unfair play. Both process flaws and shockingly unfair terms needed to void a contract.
The trap
Students think: Any unfair term is enough. Wrong, because both procedural and substantive unconscionability must be present. The actual test is dual presence.
How examiners test it
The MBE loves: a contract with fine print + one-sided terms. Trap: students overlook weak bargaining process, focusing only on unfair terms. Both must be shown.
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