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Thursday, January 09, 2020

The doctrine of unconscionability

Just a little light reading that has occupied a few members of the Legion of late:
“The doctrine of unconscionability ‘ “ ‘refers to “ ‘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.’ ” ’ ” ’  [Citations.]  There is both a procedural and substantive aspect of unconscionability; the former focuses on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.  [Citation.]

‘ “Both procedural and substantive unconscionability must be present for the court to refuse to enforce a contract under the doctrine of unconscionability although ‘ “they need not be present in the same degree.” ’  [Citation.]  Essentially the court applies a sliding scale to the determination:  ‘ “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” ’ ” ’  [Citation.]  Absent conflicting evidence, the trial court’s unconscionability determination is a question of law subject to de novo review.  [Citations.]”  (Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1063 (Ramos); see also Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113–114 (Armendariz).)
Everything up to now has just been prelude. The Death Star is now fully operational. If you're both a Rubble Bouncer and a Replatformer, be ready for the green light.

UPDATE: You will know things are well underway when Patreon revises its TOS again and removes the restrictions it inserted on December 20th before February 6th.

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45 Comments:

Blogger James Lovebirch January 09, 2020 7:03 AM  

Ready.

Blogger Dan in Georgia January 09, 2020 7:05 AM  

This sounds a lot like some of the title pawn loans I’ve seen some of my former neighbors subject to. Interest rates of over 180%, steep late fees, and ruthless repossession tactics. IOW, usury. Predatory loans targeting the poor and uneducated.

I’d rather borrow money from the Mob.

Blogger Mr.MantraMan January 09, 2020 7:20 AM  

Or me at 10 years old and getting rooked by the stamp collecting crooks that advertised in the back of the mags I read.

Blogger Rabid Ratel January 09, 2020 7:26 AM  

Interesting. Make the rubble bounce, hard

Blogger Gridhunter January 09, 2020 7:34 AM  

The firing line IS ready.

Blogger Avalanche January 09, 2020 7:41 AM  

"an absence of meaningful choice on the part of one of the parties"

Isn't that one of the fundamental principles of the lefties? Not even in the small print in their job/life descriptions' it's the title of a major section?

Blogger Salt January 09, 2020 7:42 AM  

One thing people need to remember is, the writer of the Contract has a burden the other party does not have. See: Contra proferentem.

Blogger Wario's Mart January 09, 2020 7:50 AM  

This is amazing.

Uncodified equitable unconscionability and contractual unconscionability are essentially dormant areas of law.

By that I mean, unless there is a statue or legislation overriding contract law, they usually aren't applicable.

At least in common law zones, courts are pretty leery about unconscionability, and prefer anulments or severances or decisions via doctrines like mistake or misrepresentation. Or even constructive trusts. But the US is a big place. As is the world of Rex fori.

Onerous standard form contracts and a positivist view of freedom of contract and commerciality have rendered the doctrines redundant.

This is incredibly exciting. If Vox and the legal legion can reanimate these doctrines it will have massive implications. They can be applied to a huge range of contracts and contexts.

'Caveat Emptor' or buyer beware has resigned supreme. But think about how that can apply in situations of monopoly or oligopoly. It can't. And that would in my view trigger both procedural and substantive unconscionability.

Damn it, I love this blog. It's just mind blowing how much Vox is accomplishing in such disparate areas. Evolution, equity, political economy, media, culture, free trade etc.

A successful precedent here means we can absolutely all go Big Game hunting in the Silicon Valley.

Additionally, we might be able to go big bank hunting too, and big payment intermediary hunting, big finance hunting generally.

Hahahahaha hell yes, blood for the blood God and skulls for Korne. We're going to rebuild Cadia and storm the Eye of Terra.

This is amazing. As a question of law not fact the ruling is much more generalisable.

Hahahaha an open mind is like a fortress unmanned with it's gates unguarded. Even in death, I still serve. The Emperor protects.


Blogger Kraemer January 09, 2020 7:53 AM  

"commence primary ignition" when?

Blogger Silent Draco January 09, 2020 7:56 AM  

Interesting. That doctrine is a concept I'd struggled with, but couldn't get the correct word. Saving the information for possible application in another venue.

Protective goggles ready.

Blogger Wario's Mart January 09, 2020 8:07 AM  

Faith is our shield. Squad deployed. Initiating attack protocol 23. The enemies of the Imperium cannot stand before us. Strategic objective identified. Claim it in the name of the immortal emperor.

It's unconscionabilities time. The time has come. It grew with good faith. Now it is ready.

Just beautiful work.

Blogger Doktor Jeep January 09, 2020 8:09 AM  

On station.

Blogger pdwalker January 09, 2020 8:17 AM  

three cheers from the peanut gallery here.

Blogger Jose Miguel January 09, 2020 8:20 AM  

Ready!

Blogger Ominous Cowherd January 09, 2020 8:21 AM  

Darn, I'm only in one of those two categories. No green light for me, I guess.

Blogger mgh January 09, 2020 9:11 AM  

Pretty much any terms and conditions with a virtual monopoly like Microsoft, Apple, Google, PayPal.

Blogger James Dixon January 09, 2020 9:13 AM  

> No green light for me, I guess.

"They also serve who only stand and wait".

I know what you mean, but be ready and do what you can.

Blogger JG January 09, 2020 9:15 AM  

Ready to go nuclear!

Blogger RandyB January 09, 2020 9:24 AM  

Not in either category. Looking forward to the earth-shattering KABOOM! nonetheless.

Blogger kiryth January 09, 2020 9:47 AM  

Gold 6 standing by

Blogger The future is Darreing January 09, 2020 10:14 AM  

It is worth looking into why conscientious objector is a thing in US Military enlistment contracts. There are lines you cannot make people cross simply because they signed a contract. If it goes that far even for them, then why can silicon valley get away with soul selling in their contracts?

Blogger Dan in Georgia January 09, 2020 10:56 AM  

No one would fight them, until now...

Blogger Zaklog the Great January 09, 2020 11:00 AM  

“They also serve who only stand and wait”.

One of those pieces of poetry than can nearly bring me to tears.

Blogger Talios Hammerfist January 09, 2020 11:46 AM  

Locked in.

Blogger Gregory the Tall January 09, 2020 11:54 AM  

I am a replatformer, but what exactly is or was the prerequisite to becoming a rubble bouncer? Was that not about the Indiegogo affair?

Blogger Manuel January 09, 2020 11:56 AM  

Standing by.

Blogger Beardy Bear January 09, 2020 12:01 PM  

Sir, yessir.

Blogger Lurker lawyer January 09, 2020 12:52 PM  

Does the LLoE take applicants?

Blogger boogeyman January 09, 2020 1:20 PM  

Not one of the people involved in this, and have no background in law, but I can see basic gamer tactics, attitude, and determination here. You keep grinding, find a glitch or unbalanced aspect the game the designers overlooked, then hammer it until you break the game.

The ride never ends. Make these fuckers squeal.

Blogger Scott January 09, 2020 2:05 PM  

Wow. What a hilarious unforced error by Patreon.

This is getting interesting.

Blogger Akulkis January 09, 2020 2:22 PM  

All of Patreon's errors are unforced.

To NOT make an error, all they had to do was be honest brokers rather than playing SJW games.

Blogger John Bosch January 09, 2020 3:10 PM  

Adding coals to the pile.
Just signed up for the $3 tier, can't wait for the books and bouncing.

Blogger VD January 09, 2020 3:26 PM  

Does the LLoE take applicants?

If you meet the criteria. Send an email with your credentials and where you are licensed to practice.

Blogger Steve Samson January 09, 2020 4:13 PM  

I'm way WAY too short for this ride, but wish you good hunting regardless. Make it bounce!

Blogger Lance E January 09, 2020 4:27 PM  

What's a replatformer? I'm the opposite of Gregory, I know what rubble bouncer means but not replatformer, and I follow pretty regularly.

Or is it something we aren't allowed to talk about publicly?

Blogger Snidely Whiplash January 09, 2020 4:41 PM  

It's like being a VFM or Dread Ilk. If you are one, you will know exactly. If you don't know, you aren't. If you think it means "badass" or "cool guy", you're a poseur.

Blogger Gregory the Tall January 09, 2020 5:46 PM  

Okay, I think I figured it out. I am a replatformer with a clear intention of making the rubble bounce at the earliest possible occasion. I hope I qualify.

Blogger Dave January 09, 2020 6:06 PM  

Gregory the Great wrote:I am a replatformer, but what exactly is or was the prerequisite to becoming a rubble bouncer? Was that not about the Indiegogo affair?

I dob't believe this rubble is the Indiegogo rubble. I happily donated to the Indiegogo rubble bouncing effort but do not appear to be in the loop on this rubble bouncing. If all I can provide is encouragement and enthusiasm, then so be it.

Blogger Dave January 09, 2020 6:20 PM  

@Lance E go here https://www.patreon.com/castalia sign-up for the membership level of your choice and be prepared to receive incredibly valuable rewards. Also be prepared if and when your support for the Resistance is requested.

Blogger Dave January 09, 2020 6:40 PM  

I just received another Patreon email notice of Updates to their Policies on Monday. They continue to email these notices almost weekly. However it appears the Updates are no different than the last notice. Of course, I didn't read every single word of the Policies. Perhaps their goal is to create Update Notice fatigue. By the way, is someone in the LL archiving the Policies daily? Patreon archives the "Old Terms of Use" on the site but I wouldn't trust them not to make multiple changes between Update Notices. There's no line by line revision documentation or dating.

Blogger Laramie Hirsch January 09, 2020 8:45 PM  

Proceed.

Blogger Akulkis January 10, 2020 2:13 AM  

Dave.

The unix (and Linux) "diff" program can show you the differences between text files.

There are variations. Some have more readable output, some are made to provide input using the list of differences and one version to output the other version, etc. However, all of the variants also have the string "diff" in their name.

Blogger mrpinks January 10, 2020 5:02 AM  

Awaiting instruction...

Blogger OneWingedShark January 10, 2020 10:58 AM  

boogeyman wrote:Not one of the people involved in this, and have no background in law, but I can see basic gamer tactics, attitude, and determination here. You keep grinding, find a glitch or unbalanced aspect the game the designers overlooked, then hammer it until you break the game.
Yep.
One of the fun things to realize is just how much is overlooked because these corporations are operating on the "precedent & court opinion" rather than actual law.

Zaklog the Great wrote:“They also serve who only stand and wait”.

One of those pieces of poetry than can nearly bring me to tears.

I remember a story from my childhood about knights with magic shields that would gain a star when they showed great valor/virtue; they went out one day to fight ogres and left one to guard the castle, he was tempted several times to leave his post and the last by ogres in shape-shifted disguise, but he steadfastly refused to leave his post. When the commander came back and had him recount the events at his post his shield gained the star because of his faithfulness and steadfastness to his duty.

Salt wrote:One thing people need to remember is, the writer of the Contract has a burden the other party does not have. See: Contra proferentem.
Excellent point/observation.

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