Also known as: surprise · hardship · unconscionability · procedural unconscionability
Written by attorneys · grounded in primary & secondary sources — see below
A factor considered when determining whether to enforce a contractual term, grant discovery, issue an injunction, or provide other relief, consisting of unexpected detriment or significant burden to a party that alters the equities or fairness of the outcome.
Simone Sanders, defending a contract suit, sought internal memos prepared by opposing counsel. She demonstrated that the memos contained facts essential to her defense and that alternative sources had been exhausted after extensive investigation. The court found the required showing of substantial need and inability to obtain equivalent materials without undue hardship, ordering production while shielding mental impressions.
Solomon Silver operated a factory emitting fumes that damaged Sierra Santos's adjacent greenhouse. Santos proved the emissions constituted a tort and sought an injunction. The court balanced the relative hardship, noting that shutting down the factory would cause Silver severe economic loss while denial would leave Santos with ongoing crop destruction, and denied the injunction after weighing the equities.
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Sasha Stone, an employee at Sterling Dynamics, disclosed internal compliance issues to corporate counsel at her supervisor's direction. When litigation arose, opposing counsel sought the communications. The court upheld privilege because the communications were made for legal advice and the work-product claim failed when the opponent could not show substantial need or inability to obtain the equivalent without undue hardship.
Sean Steele signed a premarital agreement with Sydney Santos waiving spousal support. After ten years of marriage and the birth of three children, Santos developed a disability that prevented employment. The court refused to enforce the waiver because enforcement would result in substantial hardship due to the material change in circumstances arising after signing.
Silverline Industries sought a variance to build a taller warehouse on its industrial lot. Strict application of the height limit would prevent any economically viable use of the parcel. The zoning board granted the variance after finding that literal compliance would cause unnecessary hardship unique to the property and not shared by neighboring owners.
Stonehaven Properties discovered that a former tenant had unlawfully reoccupied a commercial building. Believing the tenant had no claim of right and facing imminent destruction of fixtures, the company used minimal force to regain possession. The court found the circumstances created exceptional hardship justifying immediate reentry without awaiting a court order.
A term that would result in surprise or hardship if incorporated without express awareness is treated as a material alteration under UCC 2-207 and does not become part of the contract without the other party's assent. Courts examine whether the term imposes unexpected detriment or significant burden that the party could not reasonably anticipate.
A party must demonstrate substantial need for the materials and that it cannot obtain their substantial equivalent without undue hardship. Mental impressions of counsel remain protected even when factual work product is ordered produced.
A court may refuse enforcement if the term was unconscionable at signing or if enforcement would result in substantial hardship because of a material change in circumstances arising after the agreement was signed. The court decides the question as a matter of law.
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