 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Strand v. U.S. Bank National Association ND3/31/2005
substantive abuses relating to the terms of the contract. Weber v. Weber, 1999 ND 11, 11, 589 N.W.2d 358. This Court has summarized the determination to be made by the trial court in assessing whether contractual provisions are unconscionable:
The court is to look at the contract from the perspective of the time it was entered into, without the benefit of hindsight. The determination to be made is whether, under the circumstances presented in the particular commercial setting, the terms of the agreement are so one-sided as to be unconscionable. The principle underlying the Code's unconscionability provisions is the prevention of oppression and unfair surprise.
Construction Assocs., Inc. v. Fargo Water Equip. Co., 446 N.W.2d 237, 241 (N.D. 1989) (citations omitted).
[ ] The determination whether a particular contractual provision is unconscionable is a question of law for the court. Knutson v. Knutson, 2002 ND 29, 16, 639 N.W.2d 495; Terry v. Terry, 2002 ND 2, 14, 638 N.W.2d 11; Cook v. Hansen, 499 N.W.2d 94, 99 (N.D. 1993); Construction Assocs., 446 N.W.2d at 241. This Court has recognized, however, that the determination of unconscionability is dependent upon the factual circumstances of the case. See Knutson, at 16; Terry, at 14; Cook, at 99. Because the determination of unconscionability is fact specific, courts must "consider such claims on a case-by-case basis," Forsythe v. BancBoston Mortgage Corp., 135 F.3d 1069, 1074 (6th Cir. 1997), and assess the totality of the circumstances. 17 C.J.S. Contracts 4 (1999).
[ ] The parties have framed and argued the first certified question as though the determination of unconscionability of a "no class action" clause in an arbitration agreement can be made as a matter of law. Strand argues such clauses will always be unconscionable, and the Bank argues such clauses are authorized by law and would never be unconscionable. Because under North Dakota law the determination of unconscionability is fact specific, we are unable to say that all "no class action" clauses are unconscionable, or that all such clauses are not unconscionable. Our response to the first certified question in this case is necessarily limited to the factual situation set out in the order of certification and accompanying documents.
A.
[ ] In assessing unconscionability, the court is to employ "a two- pronged framework: procedural unconscionability, which encompasses factors relating to unfair surprise, oppression, and inequality of bargaining power, and substantive unconscionability, which focuses upon the harshness or one-sidedness of the contractual provision in question." Construction Assocs., 446 N.W.2d at 241. Before assessing procedural and substantive unconscionability, we must first address Strand's contention that under North Dakota law a party alleging unconscionability need establish only one of the two prongs, and need not demonstrate both procedural and substantive unconscionability to support a showing that the contractual provision is unenforceable. In support of his argument, Strand relies upon the definition of unconscionability quoted in Weber, 1999 ND 11, 11, 589 N.W.2d 358:
Unconscionability is a doctrine by which courts may deny enforcement of a contract "because of procedural abuses arising out of the contract formation, or because of substantive abuses relating to terms of the contract." Black's Law Dictionary, 6th Ed., 1524.
Strand claims the use of the disjunctive conjunction "or" indicates that a showing of either procedural or substantive unconscionability will suffice.
[ ] Strand reads too much into the use of the word "or" in the quoted language.
Page 1 2 3 4 5 6 7 North Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|