O.C.G.A. § 11-2-302 (2019)

Annotations

Law reviews. For article, “Consumer Protection Against Sellers Misrepresentations,” see 20 Mercer L. Rev. 414 (1969). For article, “The Unconscionability Offense,” see 4 Ga. L. Rev. 469 (1970). For note, “Pyramid Marketing Plans and Consumer Protection: State and Federal Regulation,” see 21 J. of Pub. L. 445 (1972). For article discussing interpretation in Georgia of insurance policies containing evidentiary conditions, see 12 Ga. L. Rev. 783 (1978). For article discussing the anachronistic nature of the Georgia contracts code as

dramatized by comparing the doctrine of consideration as it is formulated in the restatements of contracts and in Title 20 of the Georgia Code of 1933, and the interpretative approach Georgia courts have taken in dealing with such code, see 13 Ga. L. Rev. 499 (1979). For article, “The Future Use of Unconscionability and Impracticability as Contract Doctrines,” see 40 Mercer L. Rev. 937 (1989). For article, “Contract Litigation and the Elite Bar in New York City, 1960-1980,” see 39 Emory L.J. 413 (1990). For article, “Giving Unconscionability More Muscle: Attorney’s Fees as a Remedy for Contractual Overreaching,” see 44 Ga. L. Rev. 317 (2010).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION General Consideration “Unconscionable” defined. - “Unconscionable” under O.C.G.A. § 11-2-302 means “one-sided contracts.” R.C. Craig,

Ltd. v. Ships of Sea, Inc., 345 F. Supp. 1066, 1972 U.S. Dist. LEXIS 12788 (S.D. Ga. 1972). An unconscionable contract is such an agreement as no sane man not acting

General Consideration (Cont’d) under a delusion would make, and that no honest man would take advantage of. R.L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 214 S.E.2d 360, 1975 Ga. LEXIS 1498 (1975); Stefan Jewelers, Inc. v. ElectroProtective Corp., 161 Ga. App. 385, 288 S.E.2d 667, 1982 Ga. App. LEXIS 1891 (1982). Section not intended merely to relieve party from bad bargain. - If court determines as a matter of law that provision of a contract is unconscionable when made, it may, among other things, so limit the application of any unconscionable provision to avoid an unconscionable result, but O.C.G.A. § 11-2-302 is not designed merely to relieve a party of a bad bargain. Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353, 160 S.E.2d 659, 1968 Ga. App. LEXIS 1084 (1968). Limitation of warranty held unconscionable. - A general limitation of warranty, if construed so as to limit remedy in all events, would be unconscionable under O.C.G.A. § 11-2-302. Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga. App. 462, 188 S.E.2d 250, 1972 Ga. App. LEXIS 1370 (1972). Application O.C.G.A. § 11-2-302 does not by its terms apply to transactions not involving a sale. Interstate Sec. Police, Inc. v. Citizens & S. Emory Bank, 237 Ga. 37, 226 S.E.2d 583, 1976 Ga. LEXIS 1138 (1976). Discretion of courts over enforcement of sales contracts. - While it is a general rule in this state that parties may contract as they please subject to the exceptions of O.C.G.A. § 13-8-1 et seq., O.C.G.A. § 11-2-302 modifies this general rule that parties are free to make whatever contracts they please so long as there is no fraud or illegality by giving the courts discretion to refuse to enforce sales contracts under Georgia Uniform Commercial Code, in whole or in part, which they find to be “unconscionable.” Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 208 S.E.2d 321, 1974 Ga. App. LEXIS 1717 (1974). Exclusion or modification of warranty. - Although a seller may exclude

or modify warranties, a court may refuse to enforce an exclusion or modification on the basis of unconscionability. Mullis v. Speight Seed Farms, Inc., 234 Ga. App. 27, 505 S.E.2d 818, 1998 Ga. App. LEXIS 1136 (1998), cert. denied, No. S98C1966, 1999 Ga. LEXIS 37 (Ga. Jan. 8, 1999). Test for unconscionability. - The basic test is whether, in light of general commercial background and commercial needs of particular trade or case, clauses involved are so one-sided as to be unconscionable under circumstances existing at the time of making of contract. R.L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 214 S.E.2d 360, 1975 Ga. LEXIS 1498 (1975). Deletion of unconscionable clauses. - O.C.G.A. § 11-2-302 allows a court to determine whether any clause in a contract is unconscionable at the time it was made and, if so, to allow the contract to be construed with the offending clause deleted. Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga. App. 462, 188 S.E.2d 250, 1972 Ga. App. LEXIS 1370 (1972). A limitation of remedies in a commercial setting is not considered unconscionable. Hall v. Fruehauf Corp., 179 Ga. App. 362, 346 S.E.2d 582, 1986 Ga. App. LEXIS 1920 (1986). Nonresidents not allowed to assert that city water fees were unconscionable. - Nonresident plaintiffs, having no enforceable right to be supplied with water from a city at any price, were not allowed to assert that it was “unconscionable” that they were not being supplied with water for a fee that was less than that assessed by the authorities legally authorized to determine the rate to be charged. Zepp v. Mayor of Athens, 180 Ga. App. 72, 348 S.E.2d 673, 1986 Ga. App. LEXIS 2058 (1986). Contract provision not unconscionable. - Contract provision that provider of burglar alarm service “shall not be liable for” and jeweler “waives any rights against [provider] on account of any loss” was not unconscionable, particularly with reference to a theft by a third party, seemingly performed by professionals, in cutting the phone lines on which the service was based, thereafter cutting into the roof of the building, bypassing this protective barrier and then cutting the wire to

the outside alarm bell. Stefan Jewelers, Inc. v. Electro-Protective Corp., 161 Ga. App. 385, 288 S.E.2d 667, 1982 Ga. App. LEXIS 1891 (1982). Plaintiffs failed to state a claim for breach of express warranty against a vehicle manufacturer and distributor when they did not allege that they presented their vehicles for repairs within the warranty period, and the court would not use the unconscionability provisions of O.C.G.A. § 11-2-302, Cal. Civ. Code § 1670.5, Fla. Stat. § 672.302, 810 ILCS 5/2-302, and Va. Code Ann. § 8.2-302 to strike the time and mileage limitations. Defendants’ knowledge of the alleged defect at the time of sale, standing alone, was insufficient to render the time and mileage limitations unconscionable. McCabe v. Daimler AG, 948 F. Supp. 2d 1347, 2013 U.S. Dist. LEXIS 80161 (N.D. Ga. 2013), dismissed without prejudice, No. 1:12-cv-2494-MHC, 2015 U.S. Dist. LEXIS 180386 (N.D. Ga. Jan. 7, 2015). Guaranty not unconscionable. - When the owner of a Chapter 11 debtor signed a personal guaranty of the debtor’s debt, which included a waiver of defenses clause, in return for the withdrawal of a motion by a creditor for the appointment of a trustee, the guaranty was not unconscionable because the guaranty went through several iterations, the owner read the guaranty’s final terms, and the owner discussed the guaranty with counsel. Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 2012 U.S. Dist. LEXIS 137641 (S.D. Ga. 2012), aff’d, 523 Fed. Appx. 580, 2013 U.S. App. LEXIS 13960 (11th Cir. 2013). Bank charges not unconscionable. - While plaintiff bank customers alleged defendant bank had a practice of manipulating the posting of transactions to impose overdraft fees, there was no substantive unconscionability under O.C.G.A. § 11-2-302 as the deposit agreement was consistent with O.C.G.A. § 11-4-303(b) as to the order items were paid. White v.

Wachovia Bank, N.A., 563 F. Supp. 2d 1358, 2008 U.S. Dist. LEXIS 88112 (N.D. Ga. 2008). Warranty excluding consequential damages not unconscionable. - A warranty on a television set which excluded all incidental and consequential damages was not unconscionable under both a procedural and substantive analysis. NEC Technologies, Inc. v. Nelson, 267 Ga. 390, 478 S.E.2d 769, 1996 Ga. LEXIS 935 (1996). Provision in California lender’s contract allowing repossession of automobile if removed from California more than 30 days was not unconscionable. Francis v. Union Bank, 183 Ga. App. 84, 357 S.E.2d 837, 1987 Ga. App. LEXIS 1899 (1987), cert. denied, 183 Ga. App. 905. Motor vehicle title pawn transaction. - Although O.C.G.A. § 11-2-302 by its terms applies to transactions involving a sale, there is nothing unconscionable about a pawn ticket that authorizes the pawnbroker to sell the pawned vehicle following the debtor’s default. Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305, 527 S.E.2d 566, 1999 Ga. App. LEXIS 1624 (1999), cert. denied, No. S00C0615, 2000 Ga. LEXIS 406 (Ga. May 5, 2000). Liability limited to purchase price. - A disclaimer of liability for breach of warranty by a tobacco seed manufacturer, which stated that liability would be limited to the purchase price, was unconscionable and would not be enforced; an absence of liability on the part of the manufacturer would leave farmers with no recourse for a loss caused by a crop failure, and the allocation of risk for ineffective seeds is better shouldered by the manufacturer than the consumer. Mullis v. Speight Seed Farms, Inc., 234 Ga. App. 27, 505 S.E.2d 818, 1998 Ga. App. LEXIS 1136 (1998), cert. denied, No. S98C1966, 1999 Ga. LEXIS 37 (Ga. Jan. 8, 1999).

RESEARCH REFERENCES Am. Jur. 2d. 17A Am. Jur. 2d, Contracts, § 295. 67 Am. Jur. 2d, Sales, §§ 233-239. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:92. C.J.S. 77A C.J.S., Sales, § 79. 81 C.J.S., Specific Performance, §§ 48, 49. U.L.A. Uniform Commercial Code (U.L.A.) § 2302. ALR. Incontestable clause as excluding a defense based upon public policy, 35 A.L.R. 1491; 170 A.L.R. 1040. Enforceability of transaction entered into pursuant to referral sales arrangement, 14 A.L.R.3d 1420. “Unconscionability” as ground for refusing enforcement of contract for sale of goods or agreement collateral thereto, 18 A.L.R.3d 1305. Punitive damages for wrongful seizure of chattel by one claiming security interest, 35 A.L.R.3d 1016. Validity of disclaimer of warranty clauses in sale of new automobile, 54 A.L.R.3d 1217.

Enforceability, insofar as restrictions would be unreasonable, of contract containing unreasonable restrictions on competition, 61 A.L.R.3d 397. Validity and construction of “no damage” clause with respect to delay in building or construction contract, 74 A.L.R.3d 187. Practices forbidden by state deceptive trade practice and consumer protection acts, 89 A.L.R.3d 449. Construction and effect of new motor vehicle warranty limiting manufacturer’s liability to repair or replacement of defective parts, 2 A.L.R.4th 576. Unconscionability, under UCC § 2-302 or § 2-719(3), of disclaimer of warranties or limitation or exclusion of damages in contract subject to UCC Article 2 (Sales), 38 A.L.R.4th 25. “Unconscionability,” under UCC § 2302, of bank’s letter of credit or other financing arrangements, 15 A.L.R.5th 365. Electricity, gas, or water furnished by public utility or alternative supplier as “goods” within provisions of Uniform Commercial Code, Article 2 on sales, 97 A.L.R.6th 1.