Compare and contrast procedural and substantive unconscionability
The courts usually do not concern themselves with the fairness of a bargain struck by contracting parties. But in some cases, if a contract is grossly unfair to an innocent party, the courts, in equity, will not enforce it. These are called unconscionable contracts and occur when one of the parties, being in a strong position, takes advantage of the other party. The stronger party convinces the other party to enter into a contract contrary to his or her well-being. Such agreements may violate public policy and may not be enforceable.
In the past, if you wanted a prescription for a certain medication you had to see a physician first. Today, it is possible to enter into a contract to obtain a prescription for, and order, many medications via the Internet without ever setting foot in a physician’s office. Contracting with a physician online to receive prescription drugs may be ill advised, but are such contracts unconscionable? Only a few court cases have addressed this issue and so far, no court has held that prescribing drugs online is unconscionable.
Compare and contrast procedural and substantive unconscionability. If the physicians are not deceptive, should the courts allow all types of medications to be prescribed over the Internet? Why or why not? Might the practice of prescribing medications via the Internet reach the point at which it “shocks the conscience” of the court? Do you think the courts, in the few cases that have been heard, should have held that the physician’s conduct and the resulting contracts were unconscionable?
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