GM520 Keller Graduate School of Management Title: Outrageous retailer fees for vendors Submitted by: Chelsea Walker Course code: GM520ON Date: September 22, 2011 Outrageous retailer fees for vendors Are guidelines and charge back fees negotiable? Guidelines and charge back fees required by large retailers are negotiable since they confer with some of its potential holders and the greater rights than are conferred on the contract assignees which are not negotiable instruments.This fact is supported by the illustration that if sold equipment turns out to be defective, a buyer may assert a payment defense to the manufacturer under defined circumstances such as; the institution had no reason of knowing that the equipment had defects. The buyer would pursue remedies which may prove illustratory especially if a manufacturer is experiencing some financial difficulties, bankruptcy or has gone out of business (Obadina, 2010). The doctrine of unconscionabilityThe doctrine of unconscionability is a legal principle which the courts nullifies or modifies the contractual provisions which puts one party at the mercy of the other party. In contractual law, a contract which is Unconscionable is a contract which is unjust and extremely one-sided in favor of a party or an individual with the super bargaining power.
Cases of unconscionability are determined through examining the circumstances of the parties when the contract was made such as the age, bargaining power and mental capacities of the party (Davis 2010).This doctrine is normally applied only in situations where it would be an affront to the judicial system’s integrity to enforce those programs. There is normally no standard procedure to follow while applying this doctrine as the court will only apply its moral sense and conscience to the facts presented before it and make a subjective judgment (Manning 2011). The doctrine of Unconscionability (Water v.Min, Ltd) should be available as a defense to the small suppliers challenging onerous performance requirements. This is because the doctrine will permit the court to intervene into contractual relations of parties and either reject or modify an agreement since it is unfair (Davis, KE 2010). ‘Take it or leave it’ clauses on small suppliers It is not considered ethical for large retailers to impose ‘take it or leave it’ clauses on small suppliers.
This is due to the fact that the ‘take it or leave it’ clauses are mandatory arbitration clauses which often places the small suppliers in a position that they will have to forego a state of legal protection which is designed to offer remedy to the small supplier’s disparity in bargaining position between the retailers and the suppliers. This bill makes the arbitration between the small suppliers and the retailers a voluntary choice (Manning 2011).Contract provisions imposed by economic power as well as crafted by negotiation Courts should enforce contract provisions imposed by economic power rather than the one crafted by negotiations because this involves only the imposition of heavy fines directly on an individual. Contract provisions which are crafted by negotiations may result to inhumane acts such as the imposition of death penalties to the individual violating the tariff system (Obadina 2010). References Davis, KE 2010, ‘PENALTY CLAUSES THROUGH THE LENS OF UNCONSCIONABILITY DOCTRINE: BIRCH V.
UNION OF TAXATION EMPLOYEES, LOCAL 70030′, McGill Law Journal, 55, 1, pp. 151-164, Business Source Complete, EBSCOhost, viewed 25 July 2011. Obadina, OO 2010, ‘GETTING BACK TO THE PURPOSE: ANALYZING JONES V. HARRIS ASSOCIATES L. P. IN LIGHT OF SECTION 1(B) OF THE INVESTMENT COMPANY ACT’, Marquette Law Review, 94, 2, pp. 679-719, Academic Search Premier, EBSCOhost, viewed 25 July 2011.
Manning, JF 2011, ‘SEPARATION OF POWERS AS ORDINARY INTERPRETATION’, Harvard Law Review, 124, 8, pp. 1941-2040, Academic Search Premier, EBSCOhost, viewed 25 July 2011.