Nebraska Uniform Commercial Code 2A-108

UCC 2A-108

2A-108.

Unconscionability.

(1) If the court as a matter of law finds a lease contract or any clause of a lease contract to have been unconscionable at the time it was made the court may refuse to enforce the lease contract, or it may enforce the remainder of the lease contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(2) With respect to a consumer lease, if the court as a matter of law finds that a lease contract or any clause of a lease contract has been induced by unconscionable conduct or that unconscionable conduct has occurred in the collection of a claim arising from a lease contract, the court may grant appropriate relief.

(3) Before making a finding of unconscionability under subsection (1) or (2), the court, on its own motion or that of a party, shall afford the parties a reasonable opportunity to present evidence as to the setting, purpose, and effect of the lease contract or clause thereof, or of the conduct.

(4) In an action in which the lessee claims unconscionability with respect to a consumer lease:

(a) If the court finds unconscionability under subsection (1) or (2), the court shall award reasonable attorney's fees to the lessee.

(b) If the court does not find unconscionability and the lessee claiming unconscionability has brought or maintained an action he or she knew to be groundless, the court shall award reasonable attorney's fees to the party against whom the claim is made.

(c) In determining attorney's fees, the amount of the recovery on behalf of the claimant under subsections (1) and (2) is not controlling.

Source

  • Laws 1991, LB 159, § 10.

Annotations

  • COMMENT

  • Uniform Statutory Source: Section 2-302 and Unif. Consumer Credit Code section 5.108, 7A U.L.A. 167-69 (1974).

  • Changes: Subsection (1) is taken almost verbatim from the provisions of section 2-302(1). Subsection (2) is suggested by the provisions of Unif. Consumer Credit Code section 5.108(1), (2), 7A U.L.A. 167 (1974). Subsection (3), taken from the provisions of section 2-302(2), has been expanded to cover unconscionable conduct. Unif. Consumer Credit Code section 5.108(3), 7A U.L.A. 167 (1974). The provision for the award of attorney's fees to consumers, subsection (4), covers unconscionability under subsection (1) as well as (2). Subsection (4) is modeled on the provisions of Unif. Consumer Credit Code section 5.108(6), 7A U.L.A. 169 (1974).

  • Purposes:

  • Subsections (1) and (3) of this section apply the concept of unconscionability reflected in the provisions of section 2-302 to leases. See Dillman & Assocs. v. Capitol Leasing Co., 110 Ill. App. 3d 335, 342, 442 N.E.2d 311, 316 (App. Ct. 1982). Subsection (3) omits the adjective "commercial" found in subsection 2-302(2) because subsection (3) is concerned with all leases and the relevant standard of conduct is determined by the context.

  • The balance of the section is modeled on the provisions of Unif. Consumer Credit Code section 5.108, 7A U.L.A. 167-69 (1974). Thus subsection (2) recognizes that a consumer lease or a clause in a consumer lease may not itself be unconscionable but that the agreement would never have been entered into if unconscionable means had not been employed to induce the consumer to agree. To make a statement to induce the consumer to lease the goods, in the expectation of invoking an integration clause in the lease to exclude the statement's admissibility in a subsequent dispute, may be unconscionable. Subsection (2) also provides a consumer remedy for unconscionable conduct, such as using or threatening to use force or violence, in the collection of a claim arising from a lease contract. These provisions are not exclusive. The remedies of this section are in addition to remedies otherwise available for the same conduct under other law, for example, an action in tort for abusive debt collection or under another statute of this state for such conduct. The reference to appropriate relief in subsection (2) is intended to foster liberal administration of this remedy. Sections 1-106(1) and 2A-103(4).

  • Subsection (4) authorizes an award of reasonable attorney's fees if the court finds unconscionability with respect to a consumer lease under subsection (1) or (2). Provision is also made for recovery by the party against whom the claim was made if the court does not find unconscionability and does find that the consumer knew the action to be groundless. Further, subsection (4)(b) is independent of, and thus will not override, a term in the lease agreement that provides for the payment of attorney's fees.

  • Cross References:

  • Sections 1-106(1), 2-302, and 2A-103(4).

  • Definitional Cross References:

  • "Action". Section 1-201(1).

  • "Consumer lease". Section 2A-103(1)(e).

  • "Lease contract". Section 2A-103(1)(l).

  • "Lessee". Section 2A-103(1)(n).

  • "Party". Section 1-201(29).