Memorandum of Law Final Paper

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TO: Professor FROM: Student RE: Memorandum of Law Final Paper DATE: 5/8/15 Question Presented "Do the Virginia courts follow the same unconscionability doctrine as set out and applied in Jones v. Star Credit Corp.?" Short Answer In Jones, Section 2-302 of the UCC authorizes the court to find, as a matter of law, that a contract or a clause of a contract was "unconscionable at the time it was made", and upon so finding the court may refuse to enforce the contract, excise the objectionable clause or limit the application of the clause to avoid an unconscionable result. In Derby the Virginia court sets forth a two-step test. Appellant must prove both: 1) A gross disparity existed in the division of assets, and 2) Overreaching or…show more content…
Id. at 74. The court's conclusion of unconscionability was supported by findings of additional factors. Id. at 174. There is evidence of concealment, misrepresentation, and undue advantage on the part of Mrs. Derby as well as emotional weakness on the part of Mr. Derby. Id. at 74. In Jones, Section 2-302 of the UCC authorizes the court to find, as a matter of law, that a contract or a clause of a contract was "unconscionable at the time it was made", and upon so finding the court may refuse to enforce the contract, excise the objectionable clause or limit the application of the clause to avoid an unconscionable result. Jones, 298 N.Y.S.2d 264 (Sup. Ct. 1969). In Derby, “Gross disparity in the value exchanged is a significant factor in determining whether oppressive influences affected the agreement to the extent that the process was unfair and the terms of the resultant agreement unconscionable”. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989). The tests in both cases are similar in that the test has to prove gross disparity when establishing an opinion of unconscionability. b. Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005) The parties' property settlement agreement provided that the wife would receive a pickup truck value at $ 11,000. Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005). Each party waived spousal support. Id. at 267. Under the agreement, the husband was given all of the interest in the marital residence and in the
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