Bargaining Power. Even the briefest of XXXx typically includes the pricing. But there are many other terms besides pricing that are important. If a party agrees in the LOI to the pricing but leaves the other terms to be negotiated later, the party has given up the ability to use its agreement to a price as bargaining power in negotiating the other terms. The seller is usually much more disadvantaged by this. With some exceptions, these other terms mainly are for the buyer’s benefit. If the pricing is already agreed, the seller has less opportunity to gain anything meaningful in the negotiation of the other terms. If the pricing is not already agreed, the seller can require the buyer to pay more if the buyer wants these other terms to be more buyer favorable. This adverse impact on the seller’s bargaining power is compounded by a very common LOI term – a “no shop” or “exclusivity” provision. As discussed below, in this provision the seller agrees not to negotiate for the sale of the business with any third party for some specified period of time during which the parties expect to negotiate and execute a “definitive” binding purchase agreement. The “no shop” is a matter of fairness to the buyer. Before expending all the time and money needed to pursue the transaction, including investigating the business and negotiating the purchase agreement, the buyer wants assurance that the seller is committed for some limited time period to pursue a deal exclusively with the buyer and not negotiate with someone else. But by taking the business off the market for the agreed period, the seller has given up bargaining power in negotiating the other important terms of the sale -- the “threat” of the seller going with a different buyer if the buyer asks for too favorable terms. Combined with an agreement on the pricing, the “no shop” places the seller at a distinct bargaining disadvantage in negotiating the other terms of the sale. The seller can avoid this by insisting that key terms of the sale besides the pricing be negotiated in the LOI – as part of the agreement on price and before the seller agrees to take the business of the market. This preservation of the seller’s bargaining power means less advantage for the buyer. For this reason, and because negotiation of the other terms takes more time during which another buyer potentially could arrive to “steal” the deal, a buyer may resist negotiation of the other terms in the LOI. A potential compromise is for the parties to agree on a preli...
Bargaining Power. Clients/Customers have few choices other than agreeing on the terms of the agreement by clicking "I approve," or quitting the web by exiting or closing the tab. A clickwrap arrangement may be declared unenforceable due to abuse of authority. Contracts of adhesion or unfair purchasing authority are frowned upon under contract law. Due to a lack of negotiating power, eCommerce TOS are only enforceable if they list the site's conditions simply and specifically. To access the web, eCommerce agreements do not require the customer to give away too much. These electronic agreements are getting mainstream both domestically and internationally, requiring the clients/customers to be aware of the contents, agendas, terms, and conditions, etc. of the agreement to prevent heavy losses in terms of money and time fighting a case. The most basic precaution is to read and understand the contents and the terms of the agreement. The client/customer should give a cursory glance to be aware of what and how much data will be shared with the host party. Contracts of a higher priority, such as opening an online bank account or ordering costly products and services online, must be carefully read before approval. If a contract does not have certain terms and conditions, the contract may be challenged in a court of law. Most Clickwrap Agreements contain a provision for arbitration or settlement, which is normally held in the host's country or where the host lives. Such words can be emphasized when arguing that the deal is overly discriminatory because it offers the host an unfair benefit in terms of saving money on travel and other expenditures. The faction with fewer negotiating influences requires insufficient resources to fly to a foreign nation and observe court hearings.
Bargaining Power. There is a basic inequality of bargaining power between the Crown and Maori. The Crown wields control over the negotiation process; it has skilled and experienced advisors and negotiators; and it can, for the most part, pick when and on what terms it wants to negotiate, and whether or not to settle. Maori are in a comparatively weak position. They have few human and financial resources; they cannot enter into negotiations without a measure of political largesse or as a result ofjudicial favour; and are often unable to walk away from a settlement, either because their needs are pressing, or for fear that, without settlement, the Crown will act or omit to act so as to prejudice Maori interests. This power imbalance can have a significant effect on outcome: there can be no guarantee in such circumstances that Xxxxx will regard any settlement reached as legitimate. Mechanisms must be developed to redress this power imbalance. Adequate funding of Maori, in the Waitangi Tribunal and during negotiations, would be an important start.52 More far-reaching would be the boosting of the courts’ ability to safeguard the negotiation process by the statutory incorporation of the Treaty53 or of substantive Treaty rights. The appointment of an independent body to monitor Treaty negotiations is another possibility.54 49 NZMC(19S1); Love v Attorney-General Unreported, 17 November 1988, High Court Wellington Registry CP 135/88. 50 Te Runanga O Wharekauri. 51 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. 52 Chief Judge Xxxxx has commented extra-judicially that “[i]t is incumbent on the Crown, if it wants a lasting resolution of Xxxxx claims, to ensure that the Maori negotiating costs are paid for, and that the claimants are not lacking for professional aid”: Chief Judge Xxxxx, speech given at Oxford, 29 November 1989, quoted in (1989) 12 TCL 46/558; see also "1990 - The Treaty and the Lawyer" Law Talk, Wellington, New Zealand, April 1990, vol 324, 28, 33. 53 As was proposed in the 1985 draft Bill of Rights: A Bill of Rights for New Zealand: A White Paper New Zealand. Parliament. House of Representatives. Appendix to the journals, vol I, A6. This was, however, opposed by Xxxxx: X Xxxxx ‘The Bill of Rights and Te Tiriti o Waitangi” in Legal Research Foundation A Bill ofRights for New Zealand (Auckland, 1985) 207. It may be, however, that the Maori experience of the courts after 1987 has changed attitudes.
Bargaining Power. The Sealord deal was negotiated around the sale of Sealord Fisheries Ltd. Xxxxxxx that opportunity was seen as critical to the settlement of Treaty fishing claims. In these circumstances, the Maori negotiators, and those iwi who ratified the deal, felt no option but to take the deal, whatever their reservations about its content or the procedure by which it had been reached. In response to the question “Is this a good deal for Maori”, the Maori negotiators were able to reply only “[This is] the best deal that Maori will get.”176 As Whetu Xxxxxxxxxx-Xxxxxxxx emphasised in Parliament:177 172 Compare s 8 of the Resource Management Act 1991 with s 9 of the State Owned Enterprises Act 1986. 173 Despite the year 2000 commitment, the Crown seems in no hurry. There were 271 known claims pending in March 1992, but only a few small settlements and the Sealord deal have been concluded: Kelsey Rolling Back the State, above n 35, 259. The Ngai Tahu and Xxxxxx claims have been under negotiation since 1991 and Te Roroa since 1992 (“Seeking common ground”, above n 170), but there has been no indication of progress. 174 The Crown is to make clear what types of natural resource claims, for example, it considers valid in the Treaty claims policy which it is to release: “Party’s over for Xxxxxx”, above n 143. The Crown’s disestablishment of the Crown-Congress Joint Working Party on Railway Lands also demonstrates effective Crown control. Initially hailed as an important new process for Treaty claims settlement (Chief Judge Xxxxx “Politics and the Treaty”, above n 166), the Working Party was put aside when it began to make settlements the Crown regarded as inappropriate. The Labour Government’s Principlesfor Crown Action on the Treaty of Waitangi (CAB (89) Ml 6/19, 22 May 1989) demonstrate also the Crown’s power position. Although the Crown may have protested that the principles were not an attempt to rewrite the Treaty (cf Frame, above n 79, 88), if they represent the only basis on which the Crown will negotiate, then that is their substantive effect. 175 X Xxxxx “‘Full and final’ and very unsettling” The Dominion, Wellington, 7 September 1992, 6. 176 The Sealord deal - What it means for Maori, above n 5. A similar situation occurred in the “full and final” land claims settlements of the 1940s, in Taranaki, Waikato, and Ngai Tahu. In response to the question “why did the tribes accept full and final payments?”, Xxxx has suggested that part of the answer is that SEALORD DEAL 4...
Bargaining Power. This agreement has been agreed to by the parties only after negotiations between City and Owner(s), both of which were represented by counsel. Accordingly, this agreement shall not be construed as if it had been prepared only by City or Owner(s), but rather as if both City and Owner(s) had prepared the same.
