P (songwriter) entered standard form K with D. P brought claim that it was contrary to public policy and void
Is the standard form K fair in the circumstances?
Test for Fairness (objective test): Are the restrictions both:
**Reasonably necessary for the protection of the legitimate interest of the promisee, AND
***Looking at economics and circumstances of the parties
**Proportionate with the benefits secured to promisor under the contract?
There are 2 kinds of standard form contracts:
1. Mercantile: Those which set out the terms upon which mercantile transactions of common occurrence are to be carried out - these have been subject to negotiation between the parties
**Fairness is not relevant to these types
2. Ticket Cases: Concentration of particular kinds of business in relatively few hands
**Not subject to negotiation between the parties – they have been dictated by the party with the power to say, “take it or leave it” – like ticket cases
**This is the bad kind of standard form contracts
**Unequal bargaining power
The contract is unenforceable.