Unconscionable Terms: What Makes an Agreement Unfair

Not all agreement terms are created equal. Some are fair, some are imperfect, and some are so one-sided that they cross a line into what the law calls "unconscionable." Even in casual arrangements that may never see the inside of a courtroom, understanding what makes a term unconscionable helps you protect yourself and build something genuinely equitable.

What Does "Unconscionable" Actually Mean?

In legal terms, an unconscionable contract or clause is one that is so unfair to one party that no reasonable person would agree to it, and no fair person would offer it. Courts can refuse to enforce unconscionable terms — or throw out the entire agreement.

There are two types of unconscionability:

Procedural Unconscionability

This is about how the agreement was made. Was one person pressured? Did they have time to read and understand the terms? Was there a massive power imbalance? Were terms hidden in fine print?

Red flags:

• "Sign this right now or I'm leaving"
• Terms written in dense, confusing language that one party can't realistically understand
• No opportunity to ask questions or negotiate
• One person wrote the entire agreement with no input from the other

Substantive Unconscionability

This is about what the terms say. Are they grossly one-sided? Does one person bear all the risk while the other bears none?

Red flags:

• One person can end the arrangement immediately with no consequences, but the other must give 90 days' notice
• Financial penalties for ending the arrangement that are wildly disproportionate
• One person waives all rights to privacy while the other retains full privacy
• Terms that require one person to be exclusively available while the other has no such restriction

Unconscionable Terms You Might Encounter in Casual Agreements

1. Extreme Financial Penalties for Ending the Arrangement

"If you end this arrangement before six months, you must repay all gifts and allowances received."

This is problematic because it creates a financial prison. One person can't leave without devastating financial consequences, which means they're not staying by choice — they're staying out of fear. That's coercion, not consent.

A fair alternative: "Either person may end the arrangement at any time with [agreed notice period]. Financial obligations end on the last day of the notice period."

2. One-Sided Confidentiality

"You agree not to tell anyone about our arrangement. I may discuss it with anyone I choose."

If privacy matters, it should matter for both people. One-sided confidentiality suggests the clause exists to control one person rather than protect both. Learn more about how confidentiality works in Can a Confidentiality Clause Be Enforced?

A fair alternative: "Both parties agree to maintain the confidentiality of this arrangement and will not disclose its existence or terms to third parties."

3. Unlimited Availability Requirements

"You will be available whenever I request your presence, with no more than two hours' notice."

This effectively makes one person on call 24/7. It disregards their autonomy, schedule, and right to a life outside the arrangement.

A fair alternative: "We agree to meet [frequency], typically scheduled at least [timeframe] in advance. Both parties may decline or reschedule with reasonable notice."

4. Control Over Personal Choices

"You agree not to date anyone else, change your appearance, post on social media, or communicate with certain people."

Some mutual agreements about exclusivity or discretion are reasonable. But when the terms extend into controlling who someone can talk to, how they look, or what they do with their own social media accounts, that's a red flag for an abusive dynamic — not a healthy arrangement.

A fair alternative: Discuss preferences openly. "I'd prefer if we kept this exclusive" is a conversation starter. "You are prohibited from speaking to other men" is a control tactic.

5. Waiver of All Rights

"You agree to waive any and all legal rights, claims, or causes of action, present or future, against me."

This is the nuclear option of unfair terms. No legitimate agreement requires one person to surrender all legal protections. This kind of clause often signals that one person knows they might do something worth being sued over.

A fair alternative: Simply don't include this. If you need a dispute resolution process, agree to mediation or professional help first.

How to Protect Yourself

Before Signing or Agreeing

• Read everything carefully. If it's too complex to understand, that's a red flag.
• Ask questions about any term you don't understand. A reasonable partner will explain.
• Take time. Never agree to terms under time pressure. "Let me think about this for a few days" is always acceptable.
• Get a second opinion. Show the agreement to a trusted friend or, for significant arrangements, an attorney.
• Check for reciprocity. Does each term apply equally to both parties? If not, why not?

Red Flags in the Process

Watch for these warning signs during the negotiation:

• "Don't worry about that clause." If it's not important, remove it.
• "This is standard." There is no "standard" casual agreement. Every arrangement should be custom.
• "You either agree to all of it or none of it." A fair negotiation allows discussion and modification.
• "I had my lawyer write this." Intimidation through legal language is a tactic, not a sign of legitimacy.
• Refusal to put things in writing. If someone insists on verbal-only terms for your obligations but written terms for theirs, something is wrong.

The Fairness Test

When reviewing any term in a casual agreement, ask yourself three questions:

1. Would I be comfortable with this term if our roles were reversed? If not, it's probably not fair.
2. Does this term respect both people's autonomy and dignity? If it restricts one person's freedom disproportionately, reconsider.
3. Would I be embarrassed if this term were made public? If the answer is yes, that's worth examining.

These aren't legal tests — they're practical ethics. But they'll catch most unconscionable terms before they become a problem.

The Bottom Line

You don't need a law degree to spot an unfair agreement. If something feels wrong, it probably is. Trust your instincts, take your time, and never agree to terms that make you feel trapped, controlled, or afraid to leave.

A good arrangement benefits both people. If the terms only protect one person's interests, it's not an arrangement — it's exploitation.

For more on the legal foundations of agreements, visit our Enforceability Basics hub. If you're concerned about terms you've already agreed to, read When to Hire a Lawyer.

Disclaimer: This article provides general information about fairness in agreements and is not legal advice. If you believe you've entered into an unconscionable agreement, consult a licensed attorney in your jurisdiction.