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قدرت چانهزنی
In relation to the second part of the first question, Ngcobo J held that because the contract was between the appellant and the respondent, the term cannot but 'be assessed by reference to the circumstances of the parties'.32 In this regard, he placed significant emphasis on the relative situation of the parties to the contract - in particular, their relative bargaining power - and held that where there is a significant disparity7 in bargaining positions this may render the term contrary to public policy.33
On a balancing of these considerations, Ngcobo J held that the time limitation clause in the contract was not so manifestly unreasonable as to offend public policy.25 As to the question whether there was an inequality of bargaining power, Ngcobo J held that there was no evidence of such an inequality.26 Similarly, as to the question of whether enforcement in the circumstances would be contrary to public policy, it was held that without evidence as to why the appellant did not comply with the time limitation clause, there was simply no basis on which the court could find that enforcement would be contrary to public policy.27
The second question, which requires a court to consider the relative situation of the parties to the contract, or, whether there was a disparity in bargaining power at the time of concluding the contract, does not necessitate the examination of any other policy considerations.79 As noted by Botha JA in Basson, however, equality of bargaining power 'is relevant only as one of the multitude of factors to be taken into account in the enquiry as to the reasonableness'80 of a contractual term.
Similarly, the courts have recognised that the value of equality may, in cases where there is a gross disparity of bargaining power between contracting parties, dictate that less weight be afforded to those principles just mentioned, relative to other considerations.62 63 In such cases other considerations - say, those of fairness and justice - may be afforded a higher degree of relative importance which, all things considered, may incline the court to set the contract aside.
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