In the legal world, the advent of electronic communication has brought about significant changes, both in the ease of sharing documents and in the legal implications thereof. One interesting issue that has emerged is the question of whether attaching multiple documents to a single email could be seen to be procedurally unconscionable.
Traditionally, procedural unconscionability refers to instances where a party is presented with a contract or agreement in such a manner that they have insufficient time or knowledge to understand its terms. However, the recent practice of serving multiple documents in a single e-mail, forcing the recipient to go through a multitude of paperwork, has brought into question whether this practice constitutes procedural unconscionability.
Sharing documents in the past was a distinctly physical process. In the absence of copy machines, each agreement would be hand-written and then rewritten on the same page with the two copies separated by unequal cuts. Each party would then receive a copy, a practice which birthed the terms “party of the first part” and “party of the second party”. In cases of more than two parties, the agreement would be written as many times as there were parties.
Although this old process was undoubtedly laborious, it promoted transparency, comprehension, and collaboration. The modern method of serving countless documents in a single email, on the other hand, does present potential difficulties. The sheer volume of documentation that can be served can quite easily lead to information overload, making it more difficult for the recipient to understand the full implications of what they are reading.
However, whether this practice truly equates to procedural unconscionability is yet to be settled in the courts. Until a definitive ruling is made, legal professionals must remain vigilant and continue to prioritise clarity and reasonable opportunity to study agreements in their practice of sharing documents.
For more detailed analysis, see the ther original article by Allen Matkins, which presented this idea, here.