Washington Law of Unconscionability
“Unconscionability is a doctrine under which courts may deny enforcement of all or part of an unfair or oppressive contract based on abuses during the process of forming a contract or within the actual terms of the contract itself.” David K. DeWolf, et al., 25 Wash. Practice Series, Contract Law & Practice Section: 9.5 (2003). Washington recognizes two classifications of unconscionability, substantive and procedural. See Zuver v. Airtouch Communications, Inc., 153 Wn.2d 293, 103 P.3d 753, 2004 Wash. 936, 2004 WL 3016484, at *3 (Wash. Dec. 23, 2004) (citing Nelson v. McGoldrick, 127 Wn.2d 124, 896 P.2d 1258, 1262 (Wash. 1995), and Schroeder v. Fageol Motors, Inc., 86 Wn.2d 256, 544 P.2d 20, 23 (Wash. 1975)).
“Substantive unconscionablity involves those cases where a clause or term in the contract is alleged to be one-sided or overly harsh…” ” ‘Shocking to the conscience’, ‘monstrously harsh’, and ‘exceedingly calloused’ are terms sometimes used to define substantive unconscionability.” Procedural unconscionability is the “lack of a meaningful choice, considering all the circumstances surrounding the transaction including ” ‘the manner in which the contract was entered,” whether the party had “a reasonable opportunity to understand the terms of the contract,” and whether “the important terms [were] hidden in a maze of fine print.”
In Washington, a contract generally may be invalid based on either substantive or procedural unconscionability…. In the employment context, the Washington Supreme Court, while “holding that substantive unconscionability alone can support a finding of unconscionability,” has recently “declined to consider whether [procedural unconscionability] alone will support a claim of unconscionability.”…