While attorneys frequently draft memos and briefs, they draft far

The Law Offices of Patrick, Wayne and Swayze

To: Associate

From: Susan K. Patrick, Esq.

Re: Joneses, Unconscionability defense – Firm File number 4182016

The court just issued their opinion regarding Andrew and Allison Jones. I would like for you to draft an advice letter to the Joneses explaining the court’s decision. This letter should come from me, but I would like for you to draft it, then provide me with a copy for review. Please submit the letter to me before Friday of Module 8: Week 8 at 11:59 pm. I have copied the important parts of the decision below:

Concern for the protection of these consumers against overreaching by the small but hardy breed of merchants who would prey on them is not novel. There is a long history of protecting consumers from an inequality of bargaining power by examining the gross disparity of the product’s cost and value as well as the overreaching or oppressive influences of the seller. Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989).

Section 2-302 of the Uniform Commercial Code enacts the moral sense of the community into the law of commercial transactions. It authorizes the court to find, as a matter of law, that a contract or a clause of a contract was “unconscionable at the time it was made”, and upon so finding the court may refuse to enforce the contract, excise the objectionable clause or limit the application of the clause to avoid an unconscionable result.

The question before this court is whether or not, under the circumstances of this case, the sale of a laundry pair having a retail value of $1250.00 for $4000.00 (including $1,000.00 for the late payment) is unconscionable as a matter of law. Virginia courts have consistently applied a two-prong test to determine if an agreement is unconscionable: gross disparity, and overreaching or oppressive influences. Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989). The court believes that the enforcement of this contract as written would create an unconscionable result.

The gross mathematical disparity between $1250.00 (the highest retail value of the laundry pair), which presumably includes a reasonable profit margin, and $3000.00 (the Jones’ cost of the laundry pair), which is exorbitant on its face, carries the greatest weight. Furthermore, the credit charges are near the retail value of the laundry pair. These alone may be sufficient to sustain gross disparity. However, the mathematical disparity alone is not enough to determine if an unconscionable result would be created.

This court must also examine whether there were oppressive or overreaching influences. The seller must know of the very limited financial resources of the purchaser, at the time of the sale, and use that knowledge to their advantage. Advantage was aware of the few options available to the Joneses at the time of their emergency. The agent of Advantage was aware of the limited financial resources of the Joneses and took advantage of their time of need by suggesting that the cost would be slightly higher but still competitive.

Indeed, the value disparity and the influences of Advantage leads inevitably to the conclusion that knowing advantage was taken of the defendants.

There is no question about the necessity and even the desirability of installment sales and the extension of credit. There are many who would be deprived of even the most basic conveniences without the use of these devices. Similarly, the retail merchant selling on installment or extending credit is expected to establish a pricing factor that will afford a degree of protection commensurate with the risk of selling to those who might be default prone. However, neither of these accepted premises can clothe the sale of this laundry unit with respectability.

Having already paid more than $1250.00 toward the purchase of this laundry pair with a retail value of $1250.00, Advantage has been compensated for the laundry pair. However, a payment was missed so an additional penalty is reasonable. The $1,000 penalty is far beyond reasonable. Therefore, the additional payment shall be limited to the equivalent of one monthly payment: $250.00. The contract is reformed and amended by changing the payments to equal the amount already paid by the Joneses plus the $250.00 late penalty.

This document may contain information that is privileged or confidential. If you are not the intended recipient, please delete the information and notify us immediately.

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