The contracts defense of unconscionability – infrequently exercised and less frequently successful – requires that a contractual provision be so odious that it “shocks the conscience” of the adjudicator. Case law suggests that during the last century, unconscionability has been argued successfully less than twenty times in the state of Missouri. The nature of an overall unconscionability analysis is rather tenuous, given that the defense is highly fact intensive, and a range of factors, rather than elements, controls. Despite this, Missouri courts had applied a uniform test in nearly every contract situation for decades, including contracts whose terms included a mandatory arbitration clause.
Scott Lee Smithson Jr.,
Delicate Balancing of Paternalism and Freedom to Contract: The Evolving Law of Unconscionability in Missouri, A Law Summary ,
78 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol78/iss1/8