Preeti
STANDARDISED CONTRACT- 'TAKE IT OR LEAVE IT CONTRACT'- DOTTED LINE CONTRACT
Preeti Nair 16 Oct 2023

STANDARDISED CONTRACT- 'TAKE IT OR LEAVE IT CONTRACT'- DOTTED LINE CONTRACT

Where there is inequality in bargaining power due to disparity in economic strength of parties or where one party can dominate the will of the other and the weaker party has no real alternative but to assent to the unfair terms, courts will when called upon to do so , strike , down the unfair and unreasonable clause or the contract itself, even if the weaker party willingly signed the contract. One who is in extreme need may knowingly consent to a most disproportionate bargain solely to relieve the straits in which he finds himself. Using superior bargaining power to exact unfair promises should not miss vigilance of the law which allows freedom of contract, watches to see it is not abused.

FREEDOM OF CONTRACT is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and there is no injury to the economic interests of the community at large. The stronger party cannot simply use clauses to exempt themselves from their justified duties and liabilities fundamental and material to the contract itself. 

WAS THE BARGAIN FAIR?
Test of fairness - Whether restrictions are both reasonably necessary for the protection of the legitimate interests of the 'Promisee' (party for whom the obligation under contract is promised) and is balanced against the benefits secured to the 'Promisor' (party that performs the obligations for the Promisee)- In the test of fairness, ALL PROVISIONS OF THE CONTRACT (As a whole) MUST BE TAKEN INTO CONSIDERATION.

LAW SHOULD BE USED AS AN INSTRUMENT OF DISTRIBUTIVE JUSTICE
'Unconscionable'-"Showing no regard for conscience || irreconcilable with what is right or reasonable' || Those who have been deprived of their property/monies by unconscionable bargains should be restored their property/monies.

DISTRIBUTIVE FAIRNESS AND JUSTICE IN THE POSSESSION OF WEALTH 
Contracts that have been settled over the years by negotiation by representatives of commercial interests involved and widely adopted because experience has shown they facilitate the conduct of business/trade. They are widely used by parties whose bargaining power is fairly matched and thereby raises a strong presumption that the terms are fair and reasonable. There are certain kinds of contract indicating concerntration of particular kinds of business in relatively few hands. The terms and conditions are not the subject of negotiation between the parties or appproved by any organization or group representing the interests of the weaker party. 

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