미국 요양원 입소계약상의 강제적 중재 조항에 관한 미국 법원의 절차적, 실체적 비양심성 법리 고찰

Review of U.S. Courts’ Procedural and Substantive Unconscionability Doctrine Regarding Mandatory Arbitration Agre ment in the Nursing Home Contracts

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts wil enforce arbitration agre ments. Ad itionally, U.S. courts weigh a variety of factors to determine whether an arbitration agre ment is substantively unconscionable. For example, U.S. courts have considered oneeor a combination of the fol owing factors: (1) the fairnes of contractual terms; (2) the severity of contractual terms’ deviation from prevailing standards, customs, or practices withinn a particular industry; (3) the reasonablenes of goods-and-services contract prices; (4) the commercial reasonablenes of the contract terms; (5) the purpose and effect of the terms and (6) “the allocation of risks between the parties.” Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hid en in a mas of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pres ure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agregment.