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Vicksburg Partners9/22/2005
. In general, the doctrine of "unconscionability has been defined as 'an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.'" Entergy Miss., Inc. v. Burdette Gin Co., 726 So. 2d 1202, 1207 (Miss. 1998) (citing Bank of Indiana Nat'l Ass'n v. Holyfield, 476 F. Supp. 104, 109 (S.D. Miss. 1979)). Conversely, a conscionable provision has been found to bear some reasonable relationship to the risks and needs of the business. Id. Specifically, this Court recognizes two types of unconscionability, procedural and substantive, and has readily adopted language from the Mississippi federal district courts when reviewing contract language under the auspices of the Federal Arbitration Act. The dispositive issue in today's case is whether the arbitration provision rendered the subject admissions agreement unenforceable. Notably, we review all questions concerning unconscionability under the circumstances as they existed at the time the contract was made. Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 657 (S.D. Miss. 2000) (citing York v. Georgia-Pacific Corp., 585 F. Supp. 1265, 1278 (N.D. Miss. 1984)).
. However, before going further, we perhaps ought to clearly bring into focus our discussion concerning the two types of unconscionability -- procedural unconscionability and substantive unconscionability. Procedural unconscionability is applicable to the overall formation of the contract in which the subject clause (such as the arbitration clause) is contained, whereas substantive unconscionability is applicable only to the subject clause (such as the arbitration clause) itself. Thus, while procedural unconscionability must be discussed as to the formation of the overall contract, it must also be discussed as to the arbitration clause itself, since the arbitration clause is contained within the overall contract. On the other hand, when discussing and applying substantive unconscionability, we are looking only to a particular clause within the contract, such as an arbitration clause. We are not looking at the overall contract. As we stated in East Ford:
The courts have recognized "two types of unconscionability, procedural and substantive." Pridgen v. Green Tree Fin. Servicing Corp., 88 F.Supp.2d 655 (S.D. Miss. 2000) (quoting York v. Georgia-Pac. Corp., 585 F.Supp. 1265, 1278 (N.D. Miss. 1984)). Procedural unconscionability may be proved by showing "a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms." Id.
Substantive unconscionability may be proven by showing the terms of the arbitration agreement to be oppressive. York, 585 F.Supp. at 1278. Substantively unconscionable clauses have been held to include waiver of choice of forum and waiver of certain remedies. 826 So.2d at 714.
. Procedural unconscionability looks beyond the substantive terms which specifically define a contract and focuses on the circumstances surrounding a contract's formation. Blacks Law Dictionary 1524 (6th ed. 1990). In Burdette Gin, this Court outlined procedural unconscionability as follows:
The indicators of procedural unconscionability generally fall into two areas: (1) lack of knowledge, and (2) lack of voluntariness. A lack of knowledge is demonstrated by a lack of understanding of the contract terms arising from inconspicuous print or the use of complex, legalistic language, disparity in sophistication of parties, and lack of opportunity to study the contract and inquire about co
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