In 1989, The Little Mermaid made a splash in theaters for the very first time. The story centers around rebellious teenaged mermaid, Ariel, who longs to be part of the human world. Her journey from fins-to-feet is an adventure full of catchy tunes, fishy friends, and… unconscionable contracts?
Let’s get this straight. Ariel strongly desires to become human. Intrigued by the mystique of both her favorite shipwrecked treasures and allure of the human Prince Eric (which, let’s be honest who wouldn’t be?), she is willing to trade her fins in for feet and leave her family and friends behind in the water.
Preying on Ariel’s desire and naiveté, an evil sea-witch named Ursula provides Ariel with a contract and a magic potion to turn her into a human for three days. In order to remain human permanently, before sunset on the third day Eric must fall in love with Ariel. This requirement is satisfied by a kiss- the kiss of true love. If Ariel does not complete this task, she is to be turned back into a mermaid and “belong” to Ursula. Essentially, if Ariel does not convince Eric to fall in love with her, she is selling her soul to the sea-witch.
Seems legit, right? Oh, but it only gets worse.
Ursula quickly exclaims: “Oh, and there is one more thing- we haven’t discussed the subject of payment- you can’t get something for nothing, you know.” Ariel, being a sixteen-year-old mermaid does not have much money, but Ursula does not seem to mind her lack of riches. What Ursula asks of Ariel in exchange for human legs is her voice. Initially unsure, Ariel ultimately gets persuaded by Ursula to sign the contract by emphasizing the importance of her looks, her pretty face, and of course, body language!
Okay, let’s discuss the law on this subject. Under California law, if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. Civ. Code, § 1670.5. To be found unconscionable, “both a “procedural” and a “substantive” element” must be met. A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.
While both procedural and substantive unconscionability must be present for a contract or clause to be held unenforceable, there exists a “sliding scale relationship” between the two concepts meaning “they need not be present in the same degree.” Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 83; Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1249.
Procedural unconscionability concerns the “manner in which the contract was negotiated and the circumstances of the parties at that time,” focusing primarily on factors of oppression and surprise. Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1319. “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause.” Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 824–825. The substantive element also concerns whether a contractual provision “reallocates risks in an objectively unreasonable or unexpected manner.” Id., 821.
In the case of Ariel v. Ursula, it is abundantly clear the Ursula is in the position of superior bargaining power (she is the magical sea-witch after all!). Of course, Ariel does not have much power to negotiate the terms of the agreement, making the contract for humanity in exchange for voice and potential soul ownership unduly oppressive. Also, the fact that Ursula waits until the end of her spiel to mention the method of payment, being Ariel’s voice, is most likely evidence that there is at least some surprise involved during contract formation. Thus, procedural unconscionability is most likely substantially met.
It must be noted that Ariel states, “If I become human, that means I’ll never be with my father and sisters again.” To this Ursula responds, “but you’ll have your man.” In defense of Ursula, this demonstrates that Ariel does understand the severity of the situation, and that there is at least some consideration on both sides of the agreement. However, due to the overly one-sided, harsh terms of the contract, a court would likely find that this agreement reallocates risks in an unexpected manner (i.e., if Ariel does not get Prince Eric to fall in love with her, she becomes one of Ursula’s possessions!). Thus, Ursula’s contract with Ariel would most likely be deemed substantively unconscionable as well.
The presence of high degrees of both procedural and substantive unconscionability makes this contract unmistakably unconscionable under California law. Though luckily Ariel gets the kiss from Eric and her voice back from Ursula, this contract would have undoubtedly been unenforceable from the start!