Davis Factors
The Colorado Supreme Court adopted a seven factor legal test to determine whether a specific contractual provision is unconscionable. The test is adopted from the case, Davis v. M.L.G. Corp., 712 P.2d 985, 991 (Colo. 1986), which has a section that discusses unconscionability in context of an automobile rental agreement.
Those seven tests are:
- Is the agreement a standardized/form agreement made by parties with unequal bargaining power?
- Did the parties have an opportunity to read and become familiar with the document before signing it?
- Did the document bury the provision in fine print?
- Is the provision commercially reasonable?
- Is the provision substantively unfair?
- What is the relationship between the parties?
- Was there notice or surprise? What are the remaining circumstances surrounding the formation of the contract, including its commercial setting, purpose and effect?
