Florida/Georgia Personal Injury & Workers Compensation

...roscription arose from a perceived need to provide an express remedy in the event the prohibited provision was argued to be incorporated by reference or by implication, rather than simply included in future contracts or leases. [6] See, for example, § 672.302, Fla....

...the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result." Restatement (Second) of Contracts § 208 (1979); see also § 672.302, Fla....

...e, inequitable or contain other deficiencies recognized in law as a basis for judicial invalidation, these matters are not considered or decided here. By way of a footnote following the above quote, reference was made by the Court to Florida Statute 672.302, a provision of the Uniform Commercial Code, discussed infra....

...ates, Inc. v. Hudgens, 455 So.2d 651 (Fla. 4th DCA 1984), in which the court held that the lease of personal property was a transaction in goods within the meaning of section 672.102 subject to the prohibition against unconscionable clauses found in section 672.302. The trial court distinguished Capital Associates because section 672.302 is not limited by its terms to a sale involving the relationship of buyer and seller, as is section 672.608....

...es; (c) To make uniform the law among the various jurisdictions." [1] Florida courts have observed this directive in holding that leases of equipment may be "transactions in goods" within the definition in section 672.101 for the purpose of applying section 672.302, Capital Associates, Inc....

...of acceptance when a defective vehicle is delivered pursuant to either a sale or a long term lease. Nevertheless we must leave this solution to the legislature. The section of the code involved in Capital Associates, Inc. v. Hudgens, 455 So.2d 651, section 672.302, prohibiting unconscionable clauses, is not expressly limited to a buyer and seller as is section 672.608....

...rhead expense he would incur in his medical practice while he was away. At an in-camera hearing prior to the commencement of the jury trial, the court determined that the limitation of liability clause was unconscionable at the time it was made. See section 672.302, Florida Statutes (1981)....

...In view of the foregoing, the judgment appealed from is reversed and the cause is remanded to the trial court with directions to enter judgment for owners/appellants. REVERSED AND REMANDED, with directions. HURLEY and BARKETT, JJ., concur. NOTES [1] U.C.C. section 2-302 is codified in Florida as section 672.302.

...ained a court order compelling arbitration. The arbitration agreement's fee provision also penalizes the Buyers for exercising their rights under the Florida Arbitration Code, section 682.03, to have the court decide certain gateway issues and under section 672.302, Florida Statutes (2000), to have the court determine whether the agreement is unconscionable....

...ions. By contrast, [T]he attorney's fee provision in the arbitration agreement... also penalizes the Buyers for exercising their rights under the Florida Arbitration Code, section 682.03, ... to have the court decide certain gateway issues and under section 672.302, Florida Statutes (2000), to have the court determine whether the agreement is unconscionable....

...We reverse and remand for further proceedings consistent with the views expressed herein. The principal error alleged by Credit Alliance is the trial court's failure, in spite of a contractual waiver of trial by jury, to strike Westland's jury demand. Relying on section 672.302, Florida Statutes (1981), Westland argues that such a contractual provision, concededly buried in boiler plate, is unconscionable. We disagree. The contract in question was agreed to by experienced businessmen. There is no evidence of overreaching or unconscionability within the meaning of section 672.302....

...No appearance for appellees. GLICKSTEIN, Judge. This is an appeal from a summary final judgment in favor of a party that was also *346 involved in Capital Associates, Inc. v. Hudgens, 455 So.2d 651 (Fla. 4th DCA 1984). In that case we specifically found section 672.302(2), Florida Statutes (1983), to apply to leases. The leases in both cases contain the same relevant language. Section 672.302 provides: (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the co...

...interest and other charges contained therein, would be so unconscionable as to shock this court's conscience." He found "in particular" that the annual percentage rate of 11.75% was unconscionable. Although not cited by the trial judge in his order, § 672.302, F.S....

...t the lease agreement was unconscionable. Even so, we must remand for further proceedings because the trial court failed to afford Capital "a reasonable opportunity to present evidence as to [the lease's] commercial setting, purpose and effect... ." § 672.302(2), Fla....

...e here are movable "things" and thus meet the definition of "goods" set forth in section 672.105. In short, this lease transaction is subject to Article II of the U.C.C. and, therefore, the Code section governing unconscionable contracts or clauses, section 672.302, is applicable. See All States Leasing Co. v. Top Hat Lounge, Inc., 649 P.2d 1250 (Mont. 1982); Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance, 49 Ill. App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285 (1977). Section 672.302, Florida Statutes (1983), provides: (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enfor...

...[2] Since the clause was embedded in a page of fine print and Hudgens was an uncounseled layman, the trial court could easily conclude that the clause is so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. This would permit invocation of section 672.302 to avoid oppression and unfair surprise. See Uniform Commercial Code Comment, § 672.302, Fla....

...Umberto, 7 U.C.C. Rep.Serv. (Callaghan) 1181 (N.Y. Civ. Ct. 1970); cf. Johnson v. Mobil Oil Corp., 415 F. Supp. 264 (E.D. Mich. 1976). See generally, Davenport, Unconscionability and the Uniform Commercial Code, 22 U.Miami L.Rev. 121 (1967). Since section 672.302(2), Florida Statutes (1983), mandates that whenever unconscionability appears to be a defense to enforcement of a contract or clause, "the parties shall be afforded a reasonable opportunity to present evidence as to its commercial set...

...ourt in making its determination," and because Capital never had an opportunity to defend the commercial reasonableness of its contract, we must remand this cause to the circuit court with instructions to hold the evidentiary hearing contemplated by section 672.302(2)....

...ted damages is expressly made void as a penalty. An unreasonably small amount would be subject to similar criticism and might be stricken under the section on unconscionable contracts or clauses. The section on unconscionable contracts or clauses is Section 672.302(1), Florida Statutes (1975), which states: (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it ma...

...UCC Article 2 applies solely to the sale of goods and is entirely inapplicable to a contract for the sale of real property. Even if Article 2 of the UCC could be used by analogy or as a reference point, a finding of unconscionability under UCC § 2-302, Fla. Stat. § 672.302 requires the existence of two conditions precedent, neither of which has been shown to exist here: “Two elements must coalesce before a case for unconscionability is made out....

...e remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result." Id. at 889 (quoting Restatement (Second) of Contracts § 208 (1979)); see also Fla. Stat. § 672.302(1) (2008)....