Unconscionability Test In Delaware
In order to hold the Merchants Association fees "unjust", it must be found to be unfair or unconscionable; that is to say, there must be an absence of meaningful choice and contract terms unreasonably favorable to one of the parties. Tulowitzk v. Atlantic Richfield Co., Del. Supr. A.2d 956, 960 (1978).
Superior bargaining power alone without the element of unreasonableness does not permit a finding of unconscionability or unfairness.
The traditional test is that a contract is unconscionable if it is "such as no man in his senses and not under delusion would make on the one hand, and as no honest or fair man would accept, on the other." Williams v. Walker-Thomas Furniture Co., 121 U.S.App.D.C. 350 F.2d 445, 450 (1965).
"It is generally held that the unconscionability test involves the question of whether the provision amounts to the taking of an unfair advantage by one party over the other." J. A. Jones Construction Co. v. City of Dover, Del.Super., 372 A.2d 540, 552 (1977), appeal dismissed, Del.Supr., 377 A.2d 1 (1977).