Such a trust, not being dependent on any unconscionability
on the part of the defendant, could only really be characterised as a resulting trust.
80) Many state courts have found the contractual limits on a statute of limitations to constitute substantive unconscionability
Second, the Supreme Court of Missouri found: "Holding that the [section] 2 saving clause preempts all state law unconscionability
defenses would be inconsistent with both the saving clause and the [Supreme Court] majority's express recognition of unconscionability
as one of the generally applicable contract defenses that retains vitality under the [section] 2 saving clause.
CHALLENGES TO MORE SPECIFIC PROVISION AND
This approach also explains the parallels between unconscionability
and the associated doctrines of duress and fraud.
344) The state-law doctrine of unconscionability
also appears in the mix, at times linked to an analysis of effective vindication.
states often applied the doctrine of unconscionability
to curtail the
Bruhl, The Unconscionability
Game: Strategic Judging and the Evolution of Federal Arbitration Law, 83 N.
52) Indeed, there are similarly cases in which "federal courts have found unconscionability
in EULAs" (53) despite the overall low success rate of this argument.
54) Their Honours said I that while the concept of constructive notice made sense in connection with the resolution of disputes as to the priority of interests as between the holder of a legal estate and the holder of a prior competing equitable estate in the law of property, (55) it was neither appropriately extended to commercial transactions' (56) nor, in particular, suitable for determining whether a transaction is impeachable for equitable fraud or unconscionability
The Supreme Court's holding was not merely an assertion of federal preemption, but also plainly prohibited application of the general contract defense of unconscionability
to invalidate an otherwise valid arbitration agreement under these circumstances," Judge Barbara Milano Keenan wrote for the court.
It is present not in the doctrine of consideration, (39) but in a separate doctrine in general contract law--the doctrine of unconscionability