It seems to me the doctrine of u nconscionability could be used by IH in their defense although it would be inconsistent with their claim of having performed due diligence.
https://en.wikipedia.org/wiki/Unconscionability << Unconscionability (sometimes known as unconscionable dealing/conduct in Australia) is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, because the consideration offered is lacking, or is so obviously inadequate, that to enforce the contract would be unfair to the party seeking to escape the contract. Unconscionability is determined by examining the circumstances of the parties when the contract was made, such as their bargaining power, age, and mental capacity. Other issues might include lack of choice, superior knowledge, and other obligations or circumstances surrounding the bargaining process. Unconscionable conduct is also found in acts of fraud and deceit, where the deliberate misrepresentation of fact deprives someone of a valuable possession. When a party takes unconscionable advantage of another, the action may be treated as criminal fraud or the civil action of deceit. For the defense of unconscionability to apply, the contract has to have been unconscionable at the time it was made; later circumstances that make the contract extremely one-sided are irrelevant. There are generally no standardized criteria for determining unconscionability; it is a subjective judgment by the judge, not a jury, and is applied only when it would be an affront to the integrity of the judicial system to enforce such a contract. Upon finding unconscionability a court has a great deal of flexibility on how it remedies the situation. It may refuse to enforce the contract against the party unfairly treated on the theory that they were misled, lacked information, or signed under duress or misunderstanding; it may refuse to enforce the offending clause, or take other measures it deems necessary to have a fair outcome. Damages are usually not awarded. >> On Sat, May 21, 2016 at 3:25 PM, H LV <[email protected]> wrote: > > > On Sat, May 21, 2016 at 10:28 AM, Jed Rothwell <[email protected]> > wrote: > >> >> >> 4. Apply some common sense. Ask yourself: what other reason would Rossi >> have to refuse admittance, other than the fact that there is no 1 MW >> machine, and no ventilation system or other means of getting rid of the >> waste heat? Can you propose ANY reason why an honest person would hesitate >> to open the door? >> >> - >> >> > > You maybe invoking a concept which at present doesn't exist in US contract > law. > > > > The concept of > " > Duty of honest contractual performance > " was > only adopted in Canada > in 2014. > > see https://en.wikipedia.org/wiki/Duty_of_honest_contractual_performance > <<Recognizing a duty of honest performance flowing directly from the > common law organizing principle of good faith is a modest, incremental > step. This new duty of honest performance is a general doctrine of contract > law that imposes as a contractual duty a minimum standard of honesty in > contractual performance. It operates irrespective of the intentions of the > parties, and is to this extent analogous to equitable doctrines which > impose limits on the freedom of contract, such as the doctrine of > unconscionability. However, the precise content of honest performance will > vary with context ...>> > > > However, it seems the foundation of most contract law in the US is the > "implied > covenant of good faith and fair dealing" > see > https://en.wikipedia.org/wiki/Good_faith_(law) > <<In contract law, the implied covenant of good faith and fair dealing > is a general presumption that the parties to a contract will deal with each > other honestly, fairly, and in good faith, so as to not destroy the right > of the other party or parties to receive the benefits of the contract. It > is implied in every contract in order to reinforce the express covenants or > promises of the contract. A lawsuit (or a cause of action) based upon the > breach of the covenant may arise when one party to the contract attempts to > claim the benefit of a technical excuse for breaching the contract, or when > he or she uses specific contractual terms in isolation in order to refuse > to perform his or her contractual obligations, despite the general > circumstances and understandings between the parties.>> > > > Please read and compare the two principles and you will see the question > you pose appears to carry no legal significance in the context of "the > covenant good faith and fair dealing". > > Harry > >
