Restraining a Call on a Performance Bond – Unconscionability
Firstly let’s address what ‘unconscionability’ actually means. Unconscionability (also known as unconscientious dealings) is a term used in contract law to describe a defence against the enforcement of a contract based on the presence of terms that are excessively unfair to one party. Typically, such a contract is held to be unenforceable because the consideration offered is lacking or is so obviously inadequate that to enforce the contract would be unfair to the party seeking to escape the contract.
In and of itself, inadequate consideration is likely not enough to make a contract unenforceable. However, the court will consider evidence that one party to the contract took advantage of its superior position to insert provisions……. Read More