Unconscionability under the common law and under the UCC · Next Generation Bar Exam

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Under State X common law, a contractual term is unconscionable if it is both procedurally and substantively unconscionable. Procedural unconscionability consists of oppression (absence of meaningful choice) or surprise (a hidden or unexpected term). Substantive unconscionability consists of terms that unreasonably favor one party. The elements need not be present to the same degree; a strongly oppressive substantive term may support a finding of unconscionability with only a modest showing of procedural unfairness. Marta, a home-care worker with limited English, was offered a job by ComfortCare Home Health. The employment application included a one-page 'Acknowledgement of Policies.' In small but legible print near the bottom, it said: "Employee agrees to indemnify ComfortCare for any loss, judgment, or expense, including attorney's fees and punitive damages, arising from ComfortCare's own negligence." The recruiter told Marta to sign the form quickly so she could start work that day; Marta did not read it. Years later, ComfortCare's negligent care of a client resulted in a judgment against ComfortCare, and ComfortCare now seeks indemnity from Marta.

If Marta argues that the indemnity clause is unconscionable, which of the following best describes how a court should rule?

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