Revisit Bargaining Parlance

REVISIT BARGAINING PARLANCE REVISIT BARGAINING PARLANCE Law is not concerned with the fairness of any of any particular transaction but merely with the fairness of the bargaining process Atiyah. T By Hadia Awan, Principal, Punjab Law College, Lahore INTRODUCTION The shoes of Hitler were auctioned for thousands of dollars, bats of renowned cricketers' were mart for thousands of bucks or an old half torn painting was sold for one million dollars: things are sold and bought online everyday on standard forms2, money is been transferred internationally inter se banks, financial institutions, and multinational companies. People sign boilerplate3 e-agreements4 without even knowing and meeting each other. All these transactions are valid enforceable contracts. These contracts carry presumptions that all necessary steps must have taken to craft them. But when these steps are tartan in detail we wonder where is one of the most important and rudimentary ingredient of bargains? In absence of this basic component how contract could be finalized? On the other hand when importance of this ingredient is sought in depth, it transpires that it not only guarantees fair-play in contract making but also preserves autonomy and freedom of parties in a contract. Many renowned writers' of law of contract highlight the importance of bargaining and state that even the outcome of contract could be compromised if the procedure to reach it is found fair8. Few others9 still stress upon fairness in bargain. They tie it to the doctrine of good faith and undue influence. Arther A. Leff10 declares agreements lacking bargaining parlance as 'pathologically ailed contracts. According to him 'procedural r 12 is required to be maintained to ensure measure of expectancy, certainty and definiteness of the contract. He 'further states that procedural irregularity results into substantive lopsidedness13 of contracts; which ultimately poses challenge to pacta dante14; the object of law of contract. When the principle of bargaining is such a fundamental requirement of valid contracts then how above-mentioned examples, where they are never bargained between parties are taken as enforceable contracts? Why do they through without a fair chance of negotiation? Another dimension of enquiry is that if the aforementioned examples are valid contracts without bargaining then what is the actual status of this celebrated and elementary requirement of law now? The purpose of this writing is to look into the genuine and realistic use of this doctrine in the contemporary15 contractual milieu. For this we are taking standard form contracts as a model for discussion and would try to highlight the effect of having no bargaining equality in these contracts. How this inequality can be cured or minimized. First part of this article introduces the concept and nature of standard form contracts. Second part deals with element which can tarnish the health of standard form contract i.e. unconscionability; what are its kinds, manifestations, and effects? In third Part we would try to justify the standard forms in the bargaining parlance. Lastly we would put forward few practical suggestions to combat unconscionability in standard form contracts to preserve the rationale of equal bargaining capacities of parties. PART-I STANDARD FORM CONTRACTS According to encyclopedia standard form contracts are, A standard form contract (sometimes referred to as an adhesion contract or boilerplate contract) is a contract between two parties that does not allow for negotiation, .i.e. take it or leave it. It is often a contract that is entered into between unequal bargaining partners. It is explained further with the help of an example, Where an individual is given a contract by salesperson of a multinational corporation, consumer is in no position to negotiate the standard terms of such contracts and the company's representative often does not have the autonomy to do sol6. Cheshire, Fifoot and Furmston17 trace history of such contracts as,- The process of mass production and distribution, which has largely supplemented if it has not supplanted individual effort, has introduced the mass contracts-uniform documents which must be accepted by all who deal with large scale organizations. Such documents are not in themselves novelties: the classical lawyer of mid-Victorian years found himself struggling to his simple conception of contracts to the demands of such powerful bodies as the railway companies. But in the present century many corporations, public arid private have found it useful to adopt, as the basis of their transactions, a series of standard forms with which their customers can do little but company18. In Schroder Music Publishing Co's cape19 Lord Diplock points out two kinds of these contracts in these words:, "The first, of very ancient origin, are those which set out the terms on which the mercantile transactions of common occurrence are to be carried out. Examples are bills of lading, charter parties, the policies of insurance, contracts of sale in the commodity markets " About second type he says: "This is comparatively of modern origin. It is the result of concentration of particular kinds of businesses in relatively few hands". While making a comparison between the two he finds out about first type of contracts 'the standard clauses in these contracts have been settled over the years by negotiations by representatives of the commercial interests involved and have been widely adopted because experience has shown that they facilitate the conduct of trade.' He finds out deficiency in the second type in this way, 'the terms of this kind of standard form of contract have not been the subject of negotiation between the parties to it, or approved by any organization representing the interests of the weaker party. They have been dictated by the party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services, enables him to say: 'if you want these goods or services at all, these are the only terms on which they are obtainable. Take it or leave it.' That means standard form contracts are not bad contracts intrinsically but when they are coupled with apprehension of unfair advantage of stronger party at the altar of weaker one; as all terms are given by one party for his own interest without any say of the counterpart then it becomes so. Inequality in bargaining potency of parties is the main reason of such contracts because if parties are told about such and such terms they would definitely not go for contract. In West v. AGC Advances Ltd., the issue was whether the loan agreement Mrs. West signed with AGC should be set aside on the ground that she was not communicated at the time of signing it about all terms of the contract and hence was 'unjust in the circumstances'. The court held that the contract should not be set aside. 'McHugh J.held', [al contract will not be unjust as against a party unless the contract or one of its provisions is the product of unfair conduct on his part either in the terms which he has imposed or in the means which he has employed to make the contract'. That again establishes that if terms are not affecting one of the parties adversely,, only its, form and the fact of being standard form do not presuppose that the contract is lopsided. PART-II UNCONSCIONABILITY Literal meaning of unconscionability is: "Absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them."2 It's but natural that while doing agreements parties guard their interests carefully. Checks of 'equal detriment21 and 'unjust enrichment'22 are there to strike a balance between competing interests of parties. Some writers criticize23 excessive check on bargains. But even they agree that inequity in respective position of parties due to status24, exposure25 or expertise26 is manifested as bargaining imbalance in contract making. The extreme of this imbalance is revealed as unconscionability. This is the point where the bargain remains no more a private matter between parties and can be looked into by the court on the standards of reasonability. In celebrated case of Commercial Bank of Australia27, Deane J. held that to constitute unconscionability three requirements should be met; 1. The weaker party must have been under a special disability vis- -vis the stronger. 2. The stronger must have been aware of that special disability. 3. It must have been unfair for the stronger to procure agreement in those circumstances. In Blomley v. Ryan28 Fullagar J. held, The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid (grant specific performance) or to set a transaction aside (make it voidable), are of great variety' and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity, of body or mind, or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other'. Few exemplary decided cases of unconscionability are, A poor man, entitled to a share of an estate worth 1700 pounds sold it for 200 guineas.29 Two brothers (a plumber' assistant and a laundryman), advised by an inexperienced solicitor also acting for the defendant, sold their reversionary interest at significantly below market value30. An elderly man, ill and 'intellectually not gifted', sold his property for an inadequate consideration in undue haste and without independent advice31. A wife in the course of divorce transferred her share in the matrimonial home to her husband without independent advice and with inadequate consideration32. An 84-year old widow with senile dementia sold paintings worth 6000 to 7000 pounds for 40 pounds to a young bric-a-brac dealer33. This can be observed from above examples that unconscionability is an anomaly that can vitiate transaction. The mode of abuse could be in writing or not but effect is that freedom to bargain is sacrificed. REASONS OF UNCONSCIONABILITY The salient feature of unconscionability in consumer's contracts is the lack of sufficient choice for the consumer. This weakens the position of consumer who is in need of commodity and results into poor bargaining capacity of needy and weaker party. There are number of factors affecting the bargaining position of consumer. This may be due to, (A) Lack of competition in the market.34 (B) Lack of sufficient expertise of the consumer.35 (C) Dependence on the seller.36 (D) Lack of sufficient time and patience of the consumer.37 (E) Monopoly of the seller over the market.38 (F) Complexity of terms of the unconscionable contract.39 (G) Complexity in the routes to be followed by the consumers.40 (H) unfriendly formatting of the standard forms.' This lack of choice is used by the seller as an exploiting tool to mine consent of the consumer. For example in our local markets the electronic goods are sold on the condition that if the pack is opened by the consumer he/she has to buy it irrespective of the fault or any deficiency in gadget or its accessories. The sellers give justification here that when the consumer is communicated that he/she would have to buy the goods if he/she opens its pack, they give the consumers an opportunity of choice and saying no to transaction. According to them this is not a case of limited or no choice; though case is the other way round. VARIETY OF UNCONSCIONABILITY There are two standard tests for the detecting elements of unconscionability in contracts (In many books these tests are taken as kinds of unconscionability):- (a) Procedural unconscionability (b) Substantive unconscionability PROCEDURAL UNCONSCIONABILITY Adhesion contract could become example of procedural unconscionability. In standard form contracts the other party has no other option except to accept the contract in toto or reject it all i.e. take it or leave it. The parties don't have equal say in bargain. Each term has not undergone the process of bargaining; 'consensus ad idern42' turns dubious regarding terms of contract for the reason that such consensus of parties does not show that each term of contract is bargained and agreed upon on mirror image43 basis. In adhesion contracts, the terms are not individually bargained due to very little or no choice of negotiation to weaker party. All terms are designed and drafted by stronger party for its own benefit. In procedural unconscionable contracts terms regarding procedural requirements in contract are made so tedious and one-sided that the other party has no option to argue against them except to accept them e.g. Carnival Cruise Line's case". The plaintiff Eulala and Russell Shute, were passengers on a cruise ship operated by the defendant, Carnival Cruise Lines, Inc. Shute had brought tickets in Washington and signed a contract, with a forum selection clause mandating that injured parties would sue in Florida, to the exclusion of all other jurisdictions. The plaintiff boarded the cruise in California, and one was injured in international waters off the coast of Mexico. The plaintiff then filed a lawsuit in Washington, in violation of the contract clause. The court of appeals held that forum selection clause was void because of unequal bargaining powers between the parties, and because it would be an undue hardship for the shutes to have to go all the way to Florida to sue. Reasoning given by dissenting Judges45 at Supreme Court was that the fact that forum selection clause was not made available to the purchaser until after payment was tendered and a lack of an opportunity for refunds at the point when the forum selection clause was disclosed.46 SUBSTANTIVE UNCONSCIONABILITY By substantive unconscionability is meant that the presence or inclusion of some substantive term in the standard form contract which materially and substantially makes contract lopsided for one of the parties. In William's47 terms of contract were turned down being unconscionable. Facts of the case are that the furniture company while selling furniture on instalment put condition on the buyers that in case of default in payment of any instalment, all furniture on which balance is due will be taken back. The appellant bought furniture in 1962 and defaulted on payment. They had also purchased furniture from appellant in 1957 on which they had some payment leftover. The respondent sought return of all the items purchased since 1957. As far as term contained in the contract is concerned it was declared unconscionable but whether performance in such circumstances could be granted or not; was remanded for re trial. The case of Walking Carrots'48 is another example of substantive unconscionability. In, this case Judge Goodrich struck down the unconscionable terms49 from contract to grant specific performance to the contract to Campbell. Few years later Campbell won another case5 over tomatoes where market price got hike from $30 per ton to $50 per ton. The court rejected the unconscionability argument, noting that the offending terms had been removed. Some writers do not agree to this classification of procedural and substantive unconscionability for the reason that end result of the both is same i.e. unfairness and exploitation of the weaker party in transaction. According to Atiyah51: While this distinction may have utility for some purpose I want to utter a word of caution against the belief that we can wholly separate our ideas of fair procedure from our idea of fair results. Procedures, after all, do affect the results, and that is one reason we are interested in fair procedures. When we set contracts aside because fraud or threats have been used by one party, it is surely idle to suppose that we are indifferent to the fact that the usual consequences of fraud or threats is to produce an unfair or one-sided contracts.52 In an Australian case53 Judges took similar view. The majority took view that procedural unfairness is only relevant to establish substantive unfairness and that with substantive unfairness; it does not S matter if there is procedural unfairness or not. VARIETY OF UNCONSCIONABILITY Other diction used for the concept of unconscionability in other countries is 'Bargaining naughtiness', 'oppression', 'Unfair surprise', Quasi-fraud', 'Quasi-duress' or 'monopolist power'. Let's take these terms one by one to know their application, scope and difference. BARGAINING NAUGHTINESS Bargaining naughtiness means and includes, default, misconduct, transgression or mischief which may take effect as if the parties were not freely provided the opportunity to bargain in such a way that it creates additional expense for one party. Or, deny one party a right he/she is by law entitled to e.g. limiting remedies or forum. In Bremen v. Zapata54 petitioner Unterweser made an agreement to tow respondent's drilling rig from Louisiana to Italy. The contract contained a forum-selection clause providing for the litigation of any dispute in the High Court of Justice in London. When the rig under tow was damaged in a storm, respondent instructed Unterweser to tow the rig to Tampa, the nearest port of refuge. There, respondent brought suit in Admiralty against petitioners. Unterweser invoked the clause in moving for dismissal for want of a jurisdiction and brought suit in the English court. OPPRESSION AND UNFAIR SURPRISE According to Arther A. Leff55: " .Oppression strictly as a linguistic and syntactical matter, might refer to what took place between the parties at the time they entered into the contract in question (a sort of Quasi-duress), or it might just as well refer to the effect of that contract upon the complaining party. In Williams v. Walker-Thomas Furniture Company the unconscionability was held on the ground of unfair surprise of the party. The buyer regularly purchased furniture and home appliances 'from the seller on instalment credit. The purchase agreements were printed contracts in the form of chattel lease, which contained the following provision: The amount of each periodical instalment payment to be made by [purchaser] to the company under this present lease shall be inclusive of and not in addition to the amount of each instalment payment to be made by the [purchaser] under such prior lease, bills, or accounts; and all payments now and hereafter made by the [purchaser] shall be credited pro rata on all outstanding leases, bills and accounts due the company by purchased at the time each such payment is made. The effect of this agreement was that at the time of each Payment a bit of whole amount got credited to all goods meaning that unless the last penny is paid by the purchaser she won't get ownership of any of the items. Campbell56 is also one of such cases. MONOPOLISTIC MARKETS In Oligopolistic market57, the monopolistic power and the element of unfair surprise co-exist reciprocally. It means that in a limited seller's market, when the purchaser has less or no choice the monopolistic power of the seller is unlimited and as a logical result unfair surprise is incomparable unless there exists some 'equipoise' to balance such inequity. Empirically it may be expressed as: Oligopolistic Market (OM) Monopolistic Power (MP) To equate proposition tools of laws e.g. anti-monopolistic laws, competition law, and IP laws etc. are required. This means in asymmetric situations law maintains the balance on both sides of equation i.e. OM = Law/MP58 Or in other way if sides of the equation are changed, Law =OM / MP Through the State action monopolistic power may be brought in the denominator. It means; the more the State supervision the lesser would be the monopolistic power which further means that imbalance in the bargaining capacity is to be mitigated through laws, courts and administrative agencies. QUASI-FRAUD/DURESS Quasi fraud or duress means that ingredients of fraud or duress are not strictly present but still the element of unfairness is there. e.g. in the cases of limited or no choice the consumer finds himself/herself constrained to enter into contract on terms of the seller. In North Ocean Shipping Co Ltd.59, court chalked out ingredients of duress and its legal effects; it was held, (a) Duress is not limited to the traditional categories of persons and goods; (b) If one can establish the right facts, then the compulsion involved in the duress may be of an economic kind; (c) If there has been economic duress a contract entered into via such duress Will be voidable. In this case there was economic duress because Hyundai had demanded an increased price without any legal justification for doing so and would not accept anything but agreement to that demand. However, relief was denied because North Ocean had delayed for a considerable period before bringing the action. In English and American Law, the concept of Duress is much developed compared with its implication in Pakistan69 and India61. In American Law Unconscionability is sometimes taken in the meaning of quasi duress e.g. Heningson's case62. OTHER MANIFESTATIONS The other advantages which sellers usually gain in the circumstances of limited or no choice are: (a) Warranty disclaimer No warranty Limited warranty (b) Remedy limitations Avenue restriction Remedy restriction Liability limitation WARRANTY DISCLAIMER One of the incidences of unconscionable contracts is warranty disclaimer. The party wants a more conclusive setting in a contractual relationship e.g. endeavoring for disclaimer of the warranty which in ordinary course of business may be so one sided that if permitted; the other party won't have entered into contract. In the baby "M,"63 Superior Court of New Jersey held that a telegraph company could not by contract limit its liability for negligence in transmitting telegraphic messages. The contract limitation was sought to be applied to the public duty of the company, the transmission of messages and not to a matter of private contract in an area of private service. (a) NO WARRANTY These are the cases where party put such- terms to the standard forms that amounts to warranty disclaimer. Now a-day the software companies are using this technique to disclaim warranty. Take the following example:- "You assume full responsibility for the selection of this product to achieve your intended purposes, for the proper installation and use of this product and for verifying the results obtained from use of this product. Company licenses the product "as is" and does not warrant that the functions contained in this product will meet your requirements, that the program is fit for any particular purpose or that the operation of the product will be uninterrupted, error-free or virus-free. Any implied warranties, including merchantability, fitness for a particular purpose, and non-infringement are expressly excluded. (b) LIMITED WARRANTY The example of limited warranty is, "ABC warrants to the person who downloads the Software that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. ABC does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations, and you must determine that the Software sufficiently meets your requirements. ABC also warrants that the media containing the Software, if provided by ABC, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. ABC's sole liability for any breach of this warranty shall be, in ABC's sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the licence fee you paid for the Software. Repaid, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to you of the repaired or replaced Software, Or (b) ABC advised you how to operate the Software so as to achieve the functionality described in the Documentation. Only if you inform ABC of your problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will ABC be obligated to honor this warranty. ABC will use reasonable commercial efforts to repair, replace, advice or refund pursuant to the foregoing warranty within 30 days of being so notified. This is a limited warranty and is the only warranty made by ABC. ABC makes no other express warranty and no warranty of non-infringement of third parties rights. The duration of implied warranties, including without limitation, warranties of merchantability and of fitness for a particular Purpose, is limited to the above limited warranty period:- some countries do not allow limitations. No ABC dealer, agent, or employee is authorized to make any modifications, 'extensions, or additions to this warranty. If any modifications are made to the Software by you during the warranty period; if the media are subjected to accident, abuse, or improper use; or if you breach the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Document. REMEDY LIMITATION Another effect of adhesion contracts is that it limits the remedies available to the parties. Two examples of liability limitation are, Example: 1 "Regardless of whether any remedy set forth in this agreement fails of its essential purpose, to the extent permitted by law, in no event will company be liable to you for any lost profits, lost savings or incidental, indirect, special or consequential damages, arising out of your use or inability to use the product or the breach of this agreement even if advised of the possibility of such damages". Example: 2 The following example has a cap on damages:-- "Under no circumstances and under no legal theory, tort, contract, or otherwise, shall ABC or its suppliers or resellers be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, or for any damages in excess of ABC's list price for a licence to the software and documentation, even if ABC shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation" In Breman v. Zapata64 the court ruled that it had jurisdiction under the contractual forum provision. District Court relied on Carbon Black Export Inc v. The Monrosa65 held the forum-selection clause unenforceable and refused to decline jurisdiction on the basis of forum non-convenience. The Court of Appeals affirmed and held: The forum-selection clause, which was a vital part of the towing contract, is binding on the parties unless respondent can meet the heavy burden of showing that its enforcement would be unreasonable, unfair, or unjust. In William's case66 Court of appeal emphasized the importance of determining whether the terms were 'hidden in a maze of fine print' but such a provision should be deemed unconscionable, under the doctrine of transactional incapacity, even if it is conspicuous to the eye67. Take another example of Henningsen's Case68. Here the terms of adhesion contract were declared unenforceable on the ground of unconscionability. But the view taken in this case was based upon the principle of public policy with regard to contracts to Quasi-public nature in which bargaining parlance is taken in terms of public policy. PART-III STANDARD FORM V. UNCONSCIONABLE CONTRACTS Going back to the classification of standard form agreements made by Lord Diplock ; these are the agreements where bargaining is not done either at al169 or is done in some other fashion. This classification is reflective of the fact that all standard form agreements merely by virtue of being standard form do not fail upon the touchstone of bargaining unless there is an element of lopsidedness is found in them. If an agreement is reasonably balance and not taxing any of the parties unduly it won't fall merely on the ground that parties could not get a chance to bargain each term separately. He supports these agreements in these words, 'as regards the first class, we should note that whole area of English commercial practice are governed by the prevalent standard form which exist in a symbolic relation with courts so that an historical analysis of the development of a particular form would show that the clause represented a response to a decision in the past.71 While discussing bad effects of these forms he gives equally justifying explanation for standard form agreements, 'in many cases the actual conclusion of the contract is in the hands of relatively junior personnel, who are not trained in contract negotiation and drafting and there are enormous economies to be affected if the company only employs one (or at the most few) standard form agreements'72. According to Cheshire and Fifoot, 'In the complex and structure of modern society the device of standard form contracts has- become prevalent and pervasive.... The French' lawyers have a name for it'. He cites Amos and Walton" to define it. The term contract d' adhesion is employed to denote the type of contract of which the conditions are fixed by one of the parties in advance and are open to acceptance by anyone. The contract, which frequently contains many conditions is presented for acceptance en bloc and is not open to discussion' Few writers74 on contract classify agreements into two classes with regard to the medium of protection used to minimize the bargaining imbalance in transaction and to guard the interest of weaker party in transaction. They say, The intervention can usually be traced to one of two types of public policy: either the protection of public interest or the protection of parties defined by law as 'weaker', in the interest of fairness between the parties. Some doctrines such as As far as the inequality in bargaining power English writers though admire the contribution of Lord Denning75 and Lord Diplock78 but they are still waiting for a definition and a standard treatment of this inequality". Sir Thomas Bingham M.R. said ' the common law could, if the letter of the statute does not apply, treat the clear intention of the legislature expressed in the statute as a platform for invalidating or restricting the operation of an oppressive clause'78. In American law a very precise provision on unconscionability is provided in section 2-302 of uniform commercial code, which reads: '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.' The definition of the term unconscionable is not provided. This is left to the determination by Court. From above description it seems that various jurisdictions are trying to give a doctrinal justification to check imbalance in bargaining parlance79. PART-IV SUGGESTIONS From above discussion two inter-reliant observations are made. The first is that in the prevailing circumstances of cyber space and standard form contracts the classical doctrine of bargaining is face up to new challenge. The element of equality in bargaining now is to be guarded more carefully than ever before as these contracts are done in ambiance of oligopolistic market; of less or no choice and advice. The other is that law is the gizmo to meet this challenge in order to reiterate the importance of bargaining in its objective spirit in the given conditions. As far as the first one is concerned, despite the changed scenario of contracts the value of the bargaining is not easily deniable. This is an age old Aristotelian and Roman traditions of justice, fair deal and fair pricing. There are at least three recognized advantages of this doctrine. 1. The conceptual simplicity. 2. Overt fairness of transaction. 3. The principle of mutuality80. Bargaining parity stands on the belief that party having better bargaining position should not exploit weakness of other in any manner. This encompasses the realism that true equality between parties is though a fiction and is never real but the gulf between statuses of party is swallowed up through the equipoise of law. Law underpins the less advantageous party to bring it in pality with the stronger one. But if that protection could not be availed at the time of contracting law once again comes into action in courts and prescribes vitiating factors which render the contract unenforceable. It means that law save weaker party at pre and post agreement stage. When parties are unequal having divergent interest are given a platform of equal choice in perspective of law that does not only work for effective public policy but also increase confidence of the subjects of law over administration of justice. But the real probe is how this modification is to be introduced formally in the law of contract. There could be two ways of doing this, (Because from above appraisal this is clear that courts are not taking the doctrine of unconscionabilitv as independent ground to set aside or question the validity of a transaction: 1. Take Unconscionability is an independent concept which can vitiate contract. A comprehensive definition should be carved out in general law of contract in this case or/and 2. It should be incorporated in the other established doctrines81 to maintain conservatism in law. First option has been used by some countries either by courts or through legislation.82 Still there are some major actors who are reluctant and not readily taking this factor as a separate principle; not at least by courts. UK is the biggest example. Writers supporting idea of not having a separate doctrine say, The Common law prefers cautious incremental extension by analogy to existing categories over the recognition of a general broad principle.83 In R v. Immigration Officer at Prague Airport Lord Hope of Craighead emphasized the limited role of the good faith principle in English private law. In contrast to civilian systems...84 The general doctrine would create an acceptable degree of uncertainty and instability in contractual dealings.85 It is not court's role to redistribute wealth. The general principle against unfairness would undermine freedom of contract.86] It is parliaments job to regulate contractual fairness and not the judiciary's.87 If parliament has fixed a certain degree of protection to consumers, employees, and tenants amongst others, it is not the court's place to go further.88 Regarding second option practice of courts is that though Unconscionability is fatal in its nature but subtle in its determination hence courts find it convenient to address this as collateral along other more established vitiating element89. Courts take very objective and usually conservative view while deciding the matters, They take legal consequences of the decision more pithily rather than to discuss about the subjective variety of the concepts. Cases are tackled generally smoothly but problem arises when things like monopolistic market or economic duress etc. are questioned within the established provinces of these established doctrines, courts give diverse and sometimes conflicting judgments. For example in William's contract terms though unconscionable were not set aside, in Cruise Line's forum selection clause was enforced upon the basis of forum non-convenience, Henningsen's case was decided upon public policy. In order to bring uniformity in decisions there is a need to demarcate the boundaries of doctrine. Even the supporters of not having a separate doctrinal basis for unconscionability do not set the argument aside that if parliament wants to legislate upon this area that could be granted but not by Courts. CONCLUSION The doctrine of bargaining cannot be undermined in current milieu of standard form (adhesion) contracts. It remains the founding doctrine in contractual relations. Presumption and fiction of law regarding bargaining parity has the same role in new (adhesion) model of agreements as it had classically been. In these arrangements unlike ideal situation99though parties don't bargain each term but the parity is protected by law91 and courts In the form of remedies like rescission; partial or full, equitable remedies92, and statutory remedies93. But still there is a need to define unconscionability comprehensively. Its parameters should be established so that uniformity in its apprehension and application could be made effective and nobody could exploit the other in the maze of hidden term which if had made known to him he won't have entered the contract. After this discourse we can utter that contract of selling of furniture94or car95 was set aside on the basis of an unconscionable term in it as sought by court while the auctions of bats and shoes were validated as there was no surprise, duress or exploitation was found. That means the real tarnish is undue advantage of one part at the cost of other. 1. Imran Khan, Bryn Lara 2. Infra pg 4 3. Infra pg 4 4. Agreements done electronically on computers or with help of any other electronic device. 5. Presumption can be made without any further proof in some situation. A thing is assumed to be done in a way it ought to be done. 6. 'Black's Law Dictionary' 5th Edition: 'to negotiate over the terms of a purchase or contract'. 7. P.k. Atiya, Anson, Chitty, Mcandrick, Leff e/tc. 8. Idd: Atiyah, P.K,'... in modem times these defenses have sometimes been subsumed under the generic heading of 'cognitive weakness' they thus...as concerned with fair procedures and not concerned with the fairness of the substantive result. On this view, law is not concerned with the fairness of any particular transaction but merely with the . fairness of the bargaining process. 9. H Beale,H Kotz, A Hartcamp and D Tollen, lus commune case-law book on common law of Europe: cases, materials and text on contract law (Hart, 2002) 2.2. 10. American professor. 11. Pathology: the study of the causes and nature of diseases, especially the structural and functional changes brought about by diseases. 2. The unhealthy conditions and processes caused by a disease, especially changes in tissues and organs of body. 12. By procedural regularity is meant that the process of contracting starting from mere proposal to reach the status of contract has undergone all fairness of bargaining, mutuality, reciprocity, bona fide intention and free consent. 13. Leff A. Arther, Harvard Law Review (1972) by substantive lopsidedness is meant that procedure renders even substantive terms tarnish. 14. Pacta dante presupposes the equal bargaining capacity among parties that results in the equitably fair interest for both. 15. By contemporary we mean that more contracts are entered now where the bargaining process is sacrificed either at the altar of expediency or the medium used for this purpose e.g. online contracts. 16. wikipedia. 17. Cheshire, Fifoot and Furmston on law of contract: eleventh edition reprinted (1988) 21. 18. An early standard form of contract is the Baltoon charterparty adopted in 1908 for use in the coal trade between the United Kingdom. and Baltic ports: see Rordam treatise on the Baltoon charterprty (1954). See also sales 16MLR 318, and the standard forms issued by the Institute of London underwriters and reprinted in appendix II of Jhalmers Marine Insurance Act, 1906. 19. Schroder Music Publishing Co Ltd. v. Macaulay (1974) 3 All ER 616 at 624, (1974) 1WLR 1308 at 1316. 20. Wikipedia, free encyclopedia; Fanning v. Fritz Pontiac-Cadillac-Buick Inc 21. That both the parties should lose something of value at the time of contracting is basic requirement according to the doctrine of consideration. 22. No party should get an unjust advantage out of the transaction. 23. Zimmermanri Reinhard and Whittaker Simon, Good Faith in European Contract Law: Cambridge University Press; 1st Edition (2000), thus for the lord Akner 'the concept of duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiation. Each party to the negotiation is entitled to pursue his/her own interest so long as he avoids making misrepresentation 24. Competency to contract. 25. Buyer depends upon the expertise of seller due to seller's specialized knowledge in the field. 26. Expert knowledge. 27. Commercial Bank of Australia v. Amadio (1983) 151 CLR 447. 28. 99 CLR 362 at 405. 29. Evan v. Llewelin (1787). 30. Fry v. Lane (1889). 31. Clark v. Malpas (1862). 32. Cresswell v. Potter (1978), Blackhouse v. Blackhouse (1978). 33. Ayres v. Hazlegrove (1984). 34. Few years back PTCL was the only network available for connectivity. 35. For buying of software and their compatibility with our systems most of the consumers know little about the latest technology. 36. For buying such aforesaid software we depend upon the expertise off the seller. 37. Usually very long forms e.g. buying a new chip(SIM) for the cell phone, are designed for the consumer which need real patience and time of the consumer. 38. Few years back the monopoly of Paktel over the cellular phone market. 39. See the example infra at note No 28. 40. For example in some countries (Israel) minors could get their credit cards but the documentation and guarantee of the parents is so cumbersome that this becomes. 41. Very small letters are written for the conditions. 42. Agreement of the parties on the same thing in the same sense. 43. An English doctrine according to which; unless the acceptance of a proposal is a mirror image of the proposal, this could not to be taken as a valid acceptance. 44. Carnival Cruise Lines inc v. Shute, 499 U.S. 585 (1991). 45. By Steven joined by Marshall. 46. Steven attached a copy of the original ticket to his dissent to show how only the most meticulous passenger would notice the clause and that notice might be in contention. 47. Williams v. Walker- Thomas Furniture Company, 121 US. App. D.C. 315, 350 F .2d 445, 198 A. 2d 914. 48. Campbell v. Wentz, 172 F. 2d 80, 3d Cir, (1948). 49. Terms of the contract were,...'grower is not obliged to deliver any carrots which he is unable to harvest or deliver, nor shall Campbell be obliged to receive or pay for any carrot which is unable to inspect, grade, receive, handle, use or pack at or ship in processed form from its plants in Camden (1) because of any circumstance beyond the control of grower or Campbell, as the case may be, or (2) because of any labor disturbance, work stoppage, slow-down, or strike involving any of Campbell's employees. Campbell shall not be liable for any delay in receiving carrots due to any of the above contingencies. During periods when Campbell is unable to receive grower's carrots, growers may with Campbell's written consent dispose of its carrots elsewhere. Grower may not, however, sell or otherwise dispose of any carrots which he is unable to deliver to Campbell. Terms given in italics were struck down as unconscionable. 50. Campbell Soup Co v. Diehm, 111 F.Supp. 211. 51. Idd supra. 52. ibid. 53. West v. AGC Advances Ltd.(1986). 54. U.S. Supreme Court the Bremen v. Zapata off-shore Co., 407 U.S. 1 (1972) 55. Leff A. Arther, 'Unconscionability and The Code-The Emperor's New Clause', 115 U. Pa. L. Rev (1967) 56. Campbell Soup Co. v. Wentz, 172 F. 2d 80, 3d Cir, (1948). 57. The market where there is less freedom of options for the buyer. 58. OM=Oligopolistic Market, MP=Monopolistic Power. 59. North Ocean Shipping Co. Ltd. v. Hyundai Construction Co Ltd. (1979) 1 QB 705. 60. Section 16(2)(b) and (3), Contract Act 1872. 61. Id. 62. Infra pg 25. 63. Baby M. was the pseudonym for Melissa Stern; born 27th March, 1986 by surrogated mother Mary Beth Whitehead and sperm donor father. 64. supra. 65. 254 f.2d 297. 66. supra. 67. Barnet Randy. E; Perspectives on Contract Law: pg307-8, Little Brown and Company 1995. 68. Henningsen v. Bloomfield Motors, Inc. 32 N.J. 358, 161 A.2d 69 IN.J.1960). 69. Id: pg 5, the second form these are the agreements of limited or no choice. 70. Id: pg 5, these are the first type of standard forms. According to Lord Diplock these agreements are so much bargained that basic terms are settled e.g. agreements with railways etc 71. See e.g. the building industry where nearly all substantial contracts are made on one or the other of the JCT forms. See also Duncan Wallace 89 LQR 36, and Gilbert-Ash (Northern) v. Modern Engineering (Bristol) [1973] 3A11 ER 195. 72. Macaulay 19 Vanderbilt L Rev 1951 73. 'Introduction to French Law' 2nd edition, 1963)p 152 74. Downes T. Antony, 'a text book on contract' (1991) illegality rest almost entirely on the former. Others such as duress and undue influence rest almost entirely on later. 75. Lloyd's Bank v. Bundy [19751 QB326. 76. Schroeder Music Publishing Co. Ltd.v. Macaulay [1974] 3All ER 616. 77. Downes T. Antony; 'a text book on contract', 188; 'despite Lord Derming's efforts, English law in some way from achieving a similar doctrine. It is unlikely to make progress until there is some change in the court's attitude to the extent to which intervention by the courts in the interest of fairness between the parties. 78. Timeload Ltd v. British Telecommunication PLC (1995) 3 E.M.L.R. 459 at pg 468. 79. Australia: Commercial Bank of Australia Ltd. v. Amodio; Louth v. Diprose (1992). Canada: Paris v. Machnik (1972). New Zealand: Nichols v. Jessup (1986).. Us : Uniform Commercial Code at [2-302]. 80. Epstein A. Richard; unconscionability: a critical reappraisal, 18 J.L and Econ.293,293-306(1973). 81. Good faith, undue influence, Fair practice etc. 82. Supra pg 29. 83. Chen-Wishart Mindy, 'Contract Law' 2nd Edition (2008) 377 84. R (European Roma Rights Center) v. Immigration Officer at Prague Airport (2004) at 59-60... In contrast to civilian systems where it is `expressly recognized and acted upon ....the preferred approach in England is to avoid any commitment to over arching principle good faith in Scottish law, as in Smith African law, is generally an underlying principle of an explanatory and legitimating rather than an active or creative nature....it is not a source of obligation in itself.' 85. Because nobody would be certain that the agreement they are entering today would be challenged later on the ground of unconscionability e.g. A agrees to buy X property at Y rate from B but later on says that bargaining parity was not there at the time of contracting and he was under the need of suit property and was constraint to buy on terms given by seller. 86. Walford v. Miles (1992) expressly rejects any duty to negotiate in good faith. 87. National Westminster Bank PLC v. Morgan (1985) at 708; Pao On v. Lau Yiu Long (1980) at 634. 88. E.g. unfair terms in Consumer Contracts Regulations 1999; Consumer Credit Act 1974; Sex Discrimination Act, 1975; Disability Discrimination Act 1995. 89. Undue influence, Good faith etc: 90. In ideal situation under umbrella of bargaining the contracting parties stand in a one to one position for contracting. They make proposals, counter-proposals and are free to bargain and at last short90 they make adjustments suitable for them. This is how the inherent inequality of parties is made up. When the fiction of parity is created there is no leeway for any exploitation in any manner. 91. Us UCC s 2-228. 92. Declaring contract voidable at the option of aggrieved party. 93. Unfair Trade Practices Act 1974 etc. 94. William's supra. 95. Henningsen's supra.