The fresh laudable coverage behind enforcing arbitration preparations ‚s the trust you to definitely they provide a cheaper, a whole lot more outings [sic] technique of paying off litigation and you may treating congested judge dockets. But not, they want to not be put as a buffer up against litigation of the one party whenever you are simultaneously reserving exclusively so you can in itself the fresh new blade off a court action.
<31>World Finance argues that this agreement does not meet the test of unconscionability because it is not one that „only someone out of his or her senses, or delusional, would enter into.“ This colorful language, transplanted to the United States long ago from English courts, has occasionally been used to characterize an unconscionable contract as one „?such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.’“ Hume v. United States, 132 U. Janssen, 2 Ves. Sen. 125, 155, 28 Eng. Rep. 82, 100 (Ch. 1750)). While this dramatically expressive characterization concededly has made it into New Mexico case law, such as Guthmann, 103 N.2d 675 at 680, if literally applied it would be inconsistent with all the New Mexico cases that have struck down contracts for unconscionability, as well as most of those from other jurisdictions. Our law has never really required that a person seeking relief from an unconscionable contract must first establish that he or she actually had to have been a madman or a fool to sign it. It is sufficient if the provision is grossly unreasonable and against our public policy under the circumstances. The repetition of this unhelpful terminology from a bygone age only serves to confuse the unconscionability issues without serving any constructive purpose. We specifically disapprove of its use as a controlling standard of unconscionability analysis under New Mexico law.
<32>Applying the settled standards of New Mexico unconscionability law, we conclude that World Finance’s self-serving arbitration scheme it imposed on its borrowers is so unfairly and unreasonably one-sided that it is substantively unconscionable. In fact, the substantive unconscionability of these one-sided arbitration provisions is so compelling that we need not rely on any finding of procedural unconscionability, any more than have other courts invalidating similar schemes in the cases cited above. It is unnecessary to remand for further fact-finding to assess particular procedural unconscionability factors surrounding the formation of each of these particular contracts, such as the relative bargaining power, sophistication, or wealth of the lender and borrower in this particular case, or in any case of a small loan company’s pre-prepared agreement that is as one-sided on its face as the one before us. See Wis. Auto, 714 N.
<33>We do not find it necessary to make a formal determination that these were contracts of adhesion, which will not be enforced when the terms are patently unfair to the weaker party, although they certainly appear to have all the characteristics.
Three elements should be found ahead of an enthusiastic adhesion package tends to be receive. First, this new arrangement have to occur in the form of a standardized contract waiting otherwise followed of the one-party with the acceptance of your own almost every other. Second, new class proffering the fresh new standard contract have to appreciate a superior bargaining updates as the weaker group nearly usually do not avoid working not as much as the specific bargain conditions. Eventually, the brand new offer have to be available to the weakened group with the good take-it-or-leave-it base, in valuable hyperlink place of window of opportunity for bargaining.