The poverty of Bangladesh law to exercise unfair contracts

Md IBNA JABER BELAL : Bangladesh does not have any laws that regulate unfair contract clauses, unequal bargaining power between the parties in the sale of products, or any other commercial practices that can result in unequal contractual obligations. There is a potential that a person or business organization (as a seller or in any other capacity) would subject the third party to unfair terms of risk. To safeguard the interests of the buyer or parties in a business transaction and to establish the obligations of the seller with regard to contract risk, a statutory provision, such as the Unfair Contract Terms Act 1977 (UK) or Unfair Contract Terms Act 1987 (Antigua and Barbuda), should be enacted. This essay aims to provide an overview of the shortcomings of the unjust contract.

Introduction

Between two or more parties, a contract is created with a number of terms and conditions. A contract’s terms set forth the obligations that each party has agreed to meet as long as the terms are upheld, which is the primary goal of the contract that needs to be achieved. Otherwise, the agreement is void or unenforceable. Many nations around the world, including Australia, the United Kingdom, Sri Lanka, and Antigua and Barbuda in the Caribbean, have enacted the Unfair Terms Act. A decision from the European Commission that addresses unfair contract clauses in business to business agreements between parties in the European Union is also applicable to member states of the EU. One of the nations lacking in resources is the People’s Republic of Bangladesh.

Many contract-related features are restricted by the Unfair Contract Terms Act of 1977, which is governed in the United Kingdom. Antigua & Barbuda, a Commonwealth nation in the Caribbean, also has a comparable statute known as The Unfair Contract Terms Act of 19873. Given that a contract is a legally binding agreement, if you enter into one with another person or business, you and the other party are typically expected to uphold the terms of the deal. In business-to-business transactions, these rules mandate stability on non-exclusively agreed conditions in contracts between buyers and sellers or suppliers.

Terms That May Be Inaccurate 

Requirements that only permit one party to avoid or limit their responsibilities under the contract.

2.Clauses that allow one party to cancel the agreement (but not the other).

Clauses that penalize one party for breaching or terminating the agreement (but not the other). 4. Conditions that permit one party to modify the terms of the agreement (but not the other).

The Unfair Contract Terms Act of 1977 and the Unfair Contract Terms Act of 1987 both include provisions for reasonableness. No person dealing as a consumer may be required to pay another person, whether a party to the contract or not, for liability that may be provoked by the other person for negligence or breach of contract, unless by a contract term that satisfies the requirements of reasonableness, according to Section 7 of the Unfair Contract Terms Act of 1987 says – No person dealing as a consumer shall be made to pay another person whether a party to the contract or not for liability that may be provoked by the other person for negligence or breach of contract except by a contract term which satisfies the requirements of reasonableness.

From this clause of this law we can see requirements of reasonableness, fair, rational, sensible whatever we call it is a requirement to form a legal contract. Reasonableness in British Law to Prevent Unfairness is mentioned in the Unfair Contract Terms Act 1977. The concept behind the test of reasonableness was designed for the vulnerable party who may give consent to a term that disadvantages them.

Section 11 of the Unfair Contract Terms Act 1977 needs a reasonableness test to such terms that can be considered unreasonable under the provisions of the Act of 1977 that is meant to protect contracting events with the aid of limiting the extent to which a party might also use contractual clauses to restriction or break out duty for a large spectrum of contract and different obligations, including the obligation of care inside the law of tort.

Comparison with The Contract Act, 1872

It’s far very difficult to fight a agreement this is prison but unfair. there is no law to report a case towards this sort of contract. The closest provisions referring to unfair practices are noted in the contract Act, 1872. Section 16 of the Contract Act, 1872  demonstrates that a contract is acquired by means of undue influence if one party celebration dominates the alternative party celebration and makes use of this unfair function to reap an unfair gain over the alternative celebration.

As stated in section 19 of the contract Act, 1872, such agreement is voidable at the option of the party celebration whose consent turned into so acquired.  In step with phase 23 of the contract Act, 1872, the agreement is void if the object of the contract is illegal, fraudulent, immoral, or against public policy.  From the above referred to sections of the winning law of Bangladesh to cope with contracts, we can see there’s rarely any scope to identify and speak to void to unfairly organized contracts.  The Spirit against Unfair contract phrases  In Williams v. Walker-Thomas furniture Co. the courtroom embraced the records surrounding the transaction and held that the guideline have to be set aside due to procedural misconduct.

The court defined unfairness as the absence of significant desire on the part of one of the events collectively with agreement terms which might be unreasonably beneficial to the opposite party.   The Supreme courtroom of recent Jersey also held a selected clause of the contract invalid because it become them towards the public good, there has been unequal bargaining electricity between the parties and the clause changed into hidden from the attention of the customer.

Skelly Wright, American Circuit judge of the united states courtroom of Appeals for the District of Columbia Circuit stated – “we hold that where the element of unconscionability is present at the time a contract is made, the contract should not be enforced.”

Conclusion

The regulation related to unfairness ought to now not be constrained to contracts for most effective business purposes. Unfair contracts can appear in process sectors too. We want a law to handle such troubles. Such enacted law should be applicable to all transactions due to the fact there are numerous transactions apart from industrial contracts where undue have an impact on is used.   The courts of various international locations have held several contracts unreasonable due to the unfair and unreasonable conditions within the contracts. several clauses associated with damages, arbitration, elegance movement waivers, termination in employment contracts, creation contracts and actual property agreements are in opposition to public coverage and give an unfair benefit to the only party because of the unequal bargaining position.  Bangladesh wishes to regulate the unfair contract phrases in which the best importance may be provided to guard the interests of the consumers, enterprise entities, labourers from unfair terms in even a valid agreement.