Vol 7 No 1 - Roger Williams University School of Law

to by industry groups, with the result that ultimately no changeswere included in the 2001 final amendments to Article 2.80UCITA deals with the objectionable term in the license in twoways.81 First, any term that is found to be “unconscionable” willbe unenforceable.82 Second, if the term is available to the licenseeonly after a person becomes obligated to pay or beginsperformance, the licensee after having an opportunity to reviewthe license may if its chooses return the information and obtain arefund.83 Although allowing an opportunity to return has been80. See, e.g., section 2-206(b) of the November 1, 1996, Council Draft (providingthat where a consumer manifests assent to a “standard form, a term contained in theform which the consumer could not have reasonably expected is not part of contractunless the consumer expressly agrees to it.”). In the July 1999 draft, subsection (a) tosection 2-206 provided that “in a consumer contract, a court may refuse to enforce astandard term in a record the inclusion of which was materially inconsistent withreasonable commercial standards of fair dealing in contracts of that type, or . . .conflicts with one or more nonstandard terms to which the parties have agreed.”Commercial interests opposed all versions of new section 2-206, argued that theproblem was already adequately addressed in the unconscionability provisions of UCCsection 2-302, and insisted that any efforts to particularize UCC section 2-302 shouldbe in the comments. See Speidel, Trenches, supra note 12 (calling attempts to draft anew provision particularizing the elements of unconscionability for consumer contractsthe “pea under the mattress”). See also infra note 82.81. In the drafting of UCITA (as well as the drafting of amendments to Article 2)attempts were made to deal with adhesion contracts generally. Ultimately, thoseattempts were abandoned, primarily because of opposition from licensors. The onlypolicing mechanism is that of unconscionability. The second method, discussed below,deals only with terms that come after the obligation to pay.82. UCITA § 111. There has been a continuing argument about whether theunconscionability concept found in UCC section 2-302 gives sufficient protectionagainst onerous terms in adhesion contracts. As a result, the 1999 Article 2 AnnualMeeting Draft contained the following addition to section 2-302, which was approvedby a 2-1 margin:(b) In a consumer contract, a nonnegotiated term in a standard form record isunconscionable and is not enforceable if it(1) eliminates the essential purpose of the contract;(2) subject to Section 2-202, conflicts with other material terms to which theparties have expressly agreed; or(3) imposes manifestly unreasonable risk or cost on the consumer in thecircumstances. Id.When the 1999 Annual Meeting Draft was withdrawn from consideration, the provisionwas abandoned and not carried over by the new Drafting Committee into what are nowthe 2001 Amendments to the Article 2, in large part because of the organizedopposition of industry. See Speidel, Trenches, supra note 12. Thus, the question ofpolicing standard terms in adhesion contracts has been left to the courts on a case-bycasebasis.83. UCITA § 112 (explaining that a person can manifest assent to a term or recordonly if he or she has had an opportunity to review its terms, which in the case of termscoming after the obligation to pay arises, means only if the person has a right to a