This paper is intended to explain the concept of unconscionable conduct within contract law. Unconscionable conduct is where one of the parties entering a contract does so on an unfair basis. For example, two parties may have formed the contract on unequal terms and subsequently one of the parties may have taken advantage of his or her position. When someone enters a contract whilst being drunk or under the influence of drugs and the other party is aware of this, it is seen as unconscionable conduct. In essence, unconscionable conduct is any behaviour, which initially paces one of the two parties entering a contract at a serious disadvantage.
The law of equity has always protected parties against unconscionable contracts where one of the parties is at a special disadvantage. For example, if he or she suffers from an illness, inexperience or ignorance. In cases like this, the party suffering the disadvantage must prove that there was undue influence. But one having done this successfully the dominant party in the contract must show that the transaction was "fair, just and reasonable. Usually common law: has been apprehensive to rescind contracts since one of the parties has been disadvantaged. This is due the philosophy of "freedom of contract". Freedom of contract dates back to the late nineteenth century where it was considered by the courts that people should be free to contract on whatever basis they choose to. The courts role was seen solely as enforcing contracts rather than interfering with contracts. Today social values have changed and the perception of the role of the law in society has too. These days law is seen as being flexible in its judgements to achieve justice in contract law.
Unconscionable conduct can be broken down into three main areas. These include Duress, Undue Influence and Unconscionable Transactions. The most common form of duress is physical duress.
