FAQ: What is an Unconscionable Act?

Most often used with the Texas Deceptive Trade Practices Act and limited to economic outcomes associated with commercial transactions, an Unconscionable Act is “an act of practice, which to a consumer’s detriment, takes advantage of the lack of knowledge, ability, or capacity of the consumer to a grossly unfair degree, resulting in a gross disparity between the value received and the consideration paid.

The Texas Supreme Court has defined “grossly” as meaning “glaringly noticeable, flagrant, complete and unmitigated.

An act being unconscionable occurs at the time of sale or contract. Determining this involves an objective review of the facts of the case, with consideration for the education, experience and ability of the consumer.

To establish unconscionability, the consumer must establish:

  1. A showing of a lack of knowledge, ability, experience, or capacity by the consumer, and
  2. That the defendant took advantage of this lack to a grossly unfair degree.

Neither knowledge, intent nor motive by the defendant need be established.