QUINN, Associate Judge.

Appellant, a person of limited education separated from her husband, is maintaining herself and her seven children by means of public assistance. During the period 1957-1962 she had a continuous course of dealings with appellee from which she purchased many household articles on the installment plan. These included sheets, curtains, rugs, chairs, a chest of drawers, beds, mattresses, a washing machine, and a stereo set. In 1963 appellee filed a complaint in replevin for possession of all the items purchased by appellant, alleging that her payments were in default and that it retained title to the goods according to the sales contracts. By the writ of replevin appellee obtained a bed, chest of drawers, washing machine, and the stereo set. After hearing testimony and examining the contracts, the trial court entered judgment for appellee.

Appellant’s principal contentions on appeal are (1) there was a lack of meeting of the minds, and (2) the contracts were against public policy.

Appellant signed fourteen contracts in all. They were approximately six inches in length and each contained a long paragraph in extremely fine print. One of the sentences in this paragraph provided that payments, after the first purchase, were to be prorated on all purchases then outstanding. Mathematically, this had the effect of keeping a balance due on all items until the time balance was completely eliminated. It meant that title to the first purchase, remained in appellee until the fourteenth purchase, made some five years later, was fully paid.

At trial appellant testified that she understood the agreements to mean that when payments on the running account were sufficient to balance the amount due on an individual item, the item became hers. She testified that most of the purchases were made at her home; that the contracts were signed in blank; that she did not read the instruments; and that she was not provided with a copy. She admitted, however, that she did not ask anyone to read or explain the contracts to her.

*916We have stated that “one who refrains from reading a contract and in conscious ignorance of its terms voluntarily assents thereto will not be relieved from his bad bargain.” Bob Wilson, Inc. v. Swann, D.C.Mun.App., 168 A.2d 198, 199 (1961). “One who signs a contract has a duty to read it and is obligated according to its terms.” Hollywood Credit Clothing Co. v. Gibson, D.C.App., 188 A.2d 348, 349 (1963). “It is as much the duty of a person who cannot read the language in which a contract is written to have someone read it to him before he signs it, as it is the duty of one who can read to peruse it himself before signing it.” Stern v. Moneyweight Scale Co., 42 App.D.C. 162, 165 (1914).

A careful review of the record shows that appellant’s assent was not obtained “by fraud or even misrepresentation falling short of fraud.” Hollywood Credit Clothing Co. v. Gibson, supra. This is not a case of mutual misunderstanding but a unilateral mistake. Under these circumstances, appellant’s first contention is without merit.

Appellant’s second argument presents a more serious question. The record reveals that prior to the last purchase appellant had reduced the balance in her account to $164. The last purchase, a stereo set, raised the balance due to $678. Significantly, at the time of this and the preceding purchases, appellee was aware of appellant’s financial position. The reverse side of the stereo contract listed the name of appellant’s social worker and her $218 monthly stipend from the government. Nevertheless, with full knowledge that appellant had to feed, clothe and support both herself and seven children on this amount, appellee sold her a $514 stereo set.

We cannot condemn too strongly appellee’s conduct. It raises serious questions of sharp practice and irresponsible business dealings. A review of the legislation in the District of Columbia affecting retail sales and the pertinent decisions of the highest court in this jurisdiction disclose, however, no ground upon which this court can declare the contracts in question contrary to public policy. We note that were the Maryland Retail Installment Sales Act, Art. 83 §§ 128-153, or its equivalent, in force in the District of Columbia, we could grant appellant appropriate relief. We think Congress should consider corrective legislation to protect the public from such exploitive contracts as were utilized in the case at bar.

Affirmed.

J. SHELLY WRIGHT, Circuit Judge:

Appellee, Walker-Thomas Furniture Company, operates a retail furniture store in the District of Columbia. During the period from 1957 to 1962 each appellant in these cases purchased a number of household items from Walker-Thomas, for which payment was to be made in installments. The terms of each purchase were contained in a printed form contract which set forth the value of the purchased item and purported to lease the item to appellant for a stipulated monthly rent payment. The contract then provided, in substance, that title would remain in Walker-Thomas until the total of all the monthly payments made equaled the stated value of the item, at which time appellants could take title. In the event of a default in the payment of any monthly installment, Walker-Thomas could repossess the item.

The contract further provided that “the amount of each periodical installment payment to be made by [purchaser] to the Company under this present lease shall be inclusive of and not in addition to the amount of each installment payment to be made by [purchaser] under such prior leases, bills or accounts; and all payments now and hereafter made by [:purchaser] shall be credited pro rata on all outstanding leases, bills and accounts due the Company by [purchaser] at the time each such payment is made.” Emphasis added.) The effect of this rather obscure provision was to keep a balance due on every item purchased until the balance due on all items, whenever purchased, was liquidated. As a result, the debt incurred at the time of purchase of each item was secured by the right to repossess all the items previously purchased by the same purchaser, and each new item purchased automatically became subject to a security interest arising out of the previous dealings.

On May 12, 1962, appellant Thorne purchased an item described as a Daveno, three tables, and two lamps, having total stated value of $391.10. Shortly thereafter, he defaulted on his monthly payments and appellee sought to replevy all the items purchased since the first transaction in 1958. Similarly, on April 17, 1962, appellant Williams bought a stereo set of stated value of $514.95.1 She too defaulted shortly thereafter, and appellee sought to replevy all the items purchased since December, 1957. The Court of General Sessions granted judgment for appellee. The District of Columbia Court of Appeals affirmed, and we granted appellants’ motion for leave to appeal to this court.

Appellants’ principal contention, rejected by both the trial and the appellate courts below, is that these contracts, or at least some of them, are unconscionable and, hence, not enforceable. In its opin*448ion in Williams v. Walker-Thomas Furniture Company, 198 A.2d 914, 916 (1964), the District of Columbia Court of Appeals explained its rejection of this contention as follows:

“Appellant’s second argument presents a more serious question. The record reveals that prior to the last purchase appellant had reduced the balance in her account to $164. The last purchase, a stereo set, raised the balance due to $678. Significantly, at the time of this and the preceding ■ purchases, appellee was aware of appellant’s financial position. The reverse side of the stereo contract listed the name of appellant’s social worker and her $218 monthly stipend from the government. Nevertheless, with full knowledge that appellant had to feed, clothe and support both herself and seven children on this amount, appellee sold her a $514 stereo set.

“We cannot condemn too strongly appellee’s conduct. It raises serious questions of sharp practice and irresponsible business dealings. A review of the legislation in the District of Columbia affecting retail sales and the pertinent decisions of the highest court in this jurisdiction disclose, however, no ground upon which this court can declare the contracts in question contrary to public policy. We note that were the Maryland Retail Installment Sales Act, Art. 83 §§ 128-153, or its equivalent, in force in the District of Columbia, we could grant appellant appropriate relief. We think Congress should consider corrective legislation to protect the public from such exploitive contracts as were utilized in the case at bar.”

We do not agree that the court lacked the power to refuse enforcement to contracts found to be unconscionable. In other jurisdictions, it has been held as a matter of common law that unconscionable contracts are not enforceable.2 While no decision of this court so holding has been found, the notion that an unconscionable bargain should not be given full enforcement is by no means novel. In Scott v. United States, 79 U.S. (12 Wall.) 443, 445, 20 L.Ed. 438 (1870), the Supreme Court stated:

“ * * * If a contract be unreasonable and unconscionable, but not void for fraud, a court of law will give to the party who sues for its breach damages, not according to its letter, but only such as he is equitably entitled to. * * * ”3

Since we have never adopted or rejected such a rule,4 the question here presented is actually one of first impression.

Congress has recently enacted the Uniform Commercial Code, which specifically provides that the court may refuse to enforce a contract which it finds to be unconscionable at the time it was made. 28 D.C.Code § 2-302 (Supp. IV 1965). The enactment of this section, which occurred subsequent to the contracts here in suit, does not mean that *449the common law of the District of Columbia was otherwise at the time of enactment, nor does it preclude the court from adopting a similar rule in the exercise of its powers to develop the common law for the District of Columbia. In fact, in view of the absence of prior authority on the point, we consider the congressional adoption of § 2-302 persuasive authority for following the rationale of the cases from which the section is explicitly derived.5 Accordingly, we hold that where the element of unconscionability is present at the time a contract is made, the contract should not be enforced.

Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.6 Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power.7 The manner in which the contract was entered is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain.8 But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the usual rule that the terms of the *450agreement are not to be questioned9 should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.10

In determining reasonableness or fairness, the primary concern must be with the terms of the contract considered in light of the circumstances existing when the contract was made. The test is not simple, nor can it be mechanically applied. The terms are to be considered “in the light of the general commercial background and the commercial needs of the particular trade or ease.”11 Corbin suggests the test' as being whether the terms are “so extreme as to appear unconscionable according to the mores and business practices of the time and place.” 1 Corbin, op. cit. supra Note 2.12 We think this formulation correctly states the test to be applied in those cases where no meaningful choice was exercised upon entering the contract.

Because the trial court and the appellate court did not feel that enforcement could be refused, no findings were made on the possible unconscionability of the contracts in these cases. Since the record is not sufficient for our deciding the issue as a matter of law, the cases must be remanded to the trial court for further proceedings.

So ordered.

DANAHER, Circuit Judge

(dissenting) :

The District of Columbia Court of Appeals obviously was as unhappy about the situation here presented as any of us can possibly be. Its opinion in the Williams case, quoted in the majority text, concludes: “We think Congress should consider corrective legislation to protect the public from such exploitive contracts as were utilized in the case at bar.”

My view is thus summed up by an able court which made no finding that there had actually been sharp practice. Rather the appellant seems to have known precisely where she stood.

There are many aspects of public policy here involved. What is a luxury to some may seem an outright necessity to others. Is public oversight to be required of the expenditures of relief funds? A washing machine, e. g., in the hands of a relief client might become a fruitful source of income. Many relief clients may well need credit, and certain business establishments will take long chances on the sale of items, expecting their pricing policies will afford a degree of protection commensurate with the risk. Perhaps a remedy when necessary will be found within the provisions of the “Loan Shark” law, D.C.Code §§ 26-601 et seq. (1961).

I mention such matters only to emphasize the desirability of a cautious approach to any such problem, particularly since the law for so long has allowed parties such great latitude in making their own contracts. I dare say there must annually be thousands upon thousands of installment credit transactions in this jurisdiction, and one can only speculate *451as to the efféct the decision in these cases will have.1

I join the District of Columbia Court of Appeals in its disposition of the issues.

OPINION OF THE COURT

Milonas, J. P.

Appellants are among the many consumers who purchased computers and software products from defendant Gateway 2000 through a direct-sales system, by mail or telephone order. As of July 3, 1995, it was Gateway’s practice to include with the materials shipped to the purchaser along with the merchandise a copy of its “Standard Terms and Conditions Agreement” and any relevant warranties for the products in the shipment. The Agreement begins with a “Note to the Customer,” which provides, in slightly larger print than the remainder of the document, in a box that spans the width of the page: “This document contains Gateway 2000’s Standard Terms and Conditions. By keeping your Gateway 2000 computer system beyond thirty (30) days after the date of delivery, you accept these Terms and Conditions.” The document consists of 16 paragraphs, and, as is relevant to this appeal, paragraph 10 of the agreement, entitled “dispute resolution,” reads as follows: “Any dispute or controversy arising out of or relating to this Agreement or its interpretation shall be settled exclusively and finally by arbitration. The arbitration shall be conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The arbitration shall be conducted in Chicago, Illinois, U.S.A. before a sole arbitrator. Any award rendered in any such arbitration proceeding shall be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction.”

Plaintiffs commenced this action on behalf of themselves and others similarly situated for compensatory and punitive damages, alleging deceptive sales practices in seven causes of action, including breach of warranty, breach of contract, fraud *249and unfair trade practices. In particular, the allegations focused on Gateway’s representations and advertising that promised “service when you need it,” including around-the-clock free technical support, free software technical support and certain on-site services. According to plaintiffs, not only were they unable to avail themselves of this offer because it was virtually impossible to get through to a technician, but also Gateway continued to advertise this claim notwithstanding numerous complaints and reports about the problem.

Insofar as is relevant to appellants, who purchased their computers after July 3, 1995, Gateway moved to dismiss the complaint based on the arbitration clause in the Agreement. Appellants argued that the arbitration clause is invalid under UCC 2-207, unconscionable under UCC 2-302 and an unenforceable contract of adhesion. Specifically, they claimed that the provision was obscure; that a customer could not reasonably be expected to appreciate or investigate its meaning and effect; that the International Chamber of Commerce (ICC) was not a forum commonly used for consumer matters; and that because ICC headquarters were in France, it was particularly difficult to locate the organization and its rules. To illustrate just how inaccessible the forum was, appellants advised the court that the ICC was not registered with the Secretary of State, that efforts to locate and contact the ICC had been unsuccessful and that apparently the only way to attempt to contact the ICC was through the United States Council for International Business, with which the ICC maintained some sort of relationship.

In support of their arguments, appellants submitted a copy of the ICC’s Rules of Conciliation and Arbitration and contended that the cost of ICC arbitration was prohibitive, particularly given the amount of the typical consumer claim involved. For example, a claim of less than $50,000 required advance fees of $4,000 (more than the cost of most Gateway products), of which the $2000 registration fee was nonrefundable even if the consumer prevailed at the arbitration. Consumers would also incur travel expenses disproportionate to the damages sought, which appellants’ counsel estimated would not exceed $1,000 per customer in this action, as well as bear the cost of Gateway’s legal fees if the consumer did not prevail at the arbitration; in this respect, the ICC Rules follow the “loser pays” rule used in England. Also, although Chicago was designated as the site of the actual arbitration, all correspondence must be sent to ICC headquarters in France.

*250The IAS Court dismissed the complaint as to appellants based on the arbitration clause in the Agreements delivered with their computers. We agree with the court’s decision and reasoning in all respects but for the issue of the unconscionability of the designation of the ICC as the arbitration body.

First, the court properly rejected appellants’ argument that the arbitration clause was invalid under UCC 2-207. Appellants claim that when they placed their order they did not bargain for, much less accept, arbitration of any dispute, and therefore the arbitration clause in the agreement that accompanied the merchandise shipment was a “material alteration” of a pre-existing oral agreement. Under UCC 2-207 (2), such a material alteration constitutes “proposals for addition to the contract” that become part of the contract only upon appellants’ express acceptance. However, as the court correctly concluded, the clause was not a “material alteration” of an oral agreement, but, rather, simply one provision of the sole contract that existed between the parties. That contract, the court explained, was formed and acceptance was manifested not when the order was placed but only with the retention of the merchandise beyond the 30 days specified in the Agreement enclosed in the shipment of merchandise. Accordingly, the contract was outside the scope of UCC 2-207.

In reaching its conclusion, the IAS Court took note of the litigation in Federal courts on this very issue, and, indeed, on this very arbitration clause. In Hill v Gateway 2000 (105 F3d 1147, cert denied — US —, 118 S Ct 47), plaintiffs in a class action contested the identical Gateway contract in dispute before us, including the enforceability of the arbitration clause. As that court framed the issue, the “[tjerms inside Gateway’s box stand or fall together. If they constitute the parties’ contract because the Hills had an opportunity to return the computer after reading them, then all must be enforced” (supra, at 1148). The court then concluded that the contract was not formed with the placement of a telephone order or with the delivery of the goods. Instead, an enforceable contract was formed only with the consumer’s decision to retain the merchandise beyond the 30-day period specified in the agreement. Thus, the agreement as a whole, including the arbitration clause, was enforceable.

This conclusion was in keeping with the same court’s decision in ProCD, Inc. v Zeidenberg (86 F3d 1447), where it found that detailed terms enclosed within the packaging of particular computer software purchased in a retail outlet constituted the *251contract between the vendor and the consumer who retained the product. In that case, the Seventh Circuit held that UCC 2-207 did not apply and indeed was “irrelevant” to such transactions, noting that the section is generally invoked where multiple agreements have been exchanged between the parties in a classic “battle of the forms,” whereas ProCD (as well as Hill and this case) involves but a single form (supra, at 1452).

The Hill decision, in its examination of the formation of the contract, takes note of the realities of conducting business in today’s world. Transactions involving “cash now, terms later” have become commonplace, enabling the consumer to make purchases of sophisticated merchandise such as computers over the phone or by mail—and even by computer. Indeed, the concept of “[p]ayment preceding the revelation of full terms” is particularly common in certain industries, such as air transportation and insurance (supra, at 1149; ProCD, Inc. v Zeidenberg, supra, at 1451).

While Hill and ProCD, as the IAS Court recognized, are not controlling (although they are decisions of the United States Court of Appeals for the circuit encompassing the forum State designated for arbitration), we agree with their rationale that, in such transactions, there is no agreement or contract upon the placement of the order or even upon the receipt of the goods. By the terms of the Agreement at issue, it is only after the consumer has affirmatively retained the merchandise for more than 30 days—within which the consumer has presumably examined and even used the product(s) and read the agreement—that the contract has been effectuated. In this respect, the case is distinguishable from S&T Sportswear Corp. v Drake Fabrics (190 AD2d 598), cited by appellants, where this Court found that an arbitration clause found on the reverse side of defendant’s draft sales contract did constitute a “material alteration” where the parties did in fact have a pre-existing oral agreement.

While appellants argue that Hill (supra) is contrary to the law of New York in that it departs from the holding of cases such as Matter of Marlene Indus. Corp. (Carnac Textiles) (45 NY2d 327) and its progeny, we disagree with their interpretation of both cases: Hill not only involves one form only, as distinguished from the “battle of the forms” scenario of the cases appellants cite, but these cases are simply inapplicable because, as explained, no contract was formed here or in Hill until the merchandise was retained beyond the 30-day period. The disputed arbitration clause is simply one provision of the sole contract “proposed” between the parties.

*252Second, with respect to appellants’ claim that the arbitration clause is unenforceable as a contract of adhesion, in that it involved no choice or negotiation on the part of the consumer but was a “take it or leave it” proposition (see, e.g., Matter of State of New York v Ford Motor Co., 74 NY2d 495, 503), we find that this argument, too, was properly rejected by the IAS Court. Although the parties clearly do not possess equal bargaining power, this factor alone does not invalidate the contract as one of adhesion. As the IAS Court observed, with the ability to make the purchase elsewhere and the express option to return the goods, the consumer is not in a “take it or leave it” position at all; if any term of the agreement is unacceptable to the consumer, he or she can easily buy a competitor’s product instead—either from a retailer or directly from the manufacturer—and reject Gateway’s agreement by returning the merchandise (see, e.g., Carnival Cruise Lines v Shute, 499 US 585, 593-594; Matter of Fidelity & Deposit Co. v Altman, 209 AD2d 195). The consumer has 30 days to make that decision. Within that time, the consumer can inspect the goods and examine and seek clarification of the terms of the agreement; until those 30 days have elapsed, the consumer has the unqualified right to return the merchandise, because the goods or terms are unsatisfactory or for no reason at all.

While returning the goods to avoid the formation of the contract entails affirmative action on the part of the consumer, and even some expense, this may be seen as a trade-off for the convenience and savings for which the consumer presumably opted when he or she chose to make a purchase of such consequence by phone or mail as an alternative to on-site retail shopping. That a consumer does not read the agreement or thereafter claims he or she failed to understand or appreciate some term therein does not invalidate the contract any more than such claim would undo a contract formed under other circumstances (see, e.g., Morris v Snappy Car Rental, 84 NY2d 21, 30). We further note that appellants’ claim of adhesion is identical to that made and rejected in Filias v Gateway 2000, an unreported case brought to our attention by both parties that interprets the same Gateway agreement (No. 97C 2523 [ND 111, Jan. 15, 1998, transferred by 1997 US Dist LEXIS 7115 [ED Mich, Apr. 8, 1997, Zatkoff, J.]).

Finally, we turn to appellants’ argument that the IAS Court should have declared the contract unenforceable, pursuant to UCC 2-302, on the ground that the arbitration clause is unconscionable due to the unduly burdensome procedure and *253cost for the individual consumer. The IAS Court found that while a class action lawsuit, such as the one herein, may be a less costly alternative to the arbitration (which is generally less costly than litigation), that does not alter the binding effect of the valid arbitration clause contained in the agreement (see, Harris v Shearson Hayden Stone, 82 AD2d 87, 92-93, affd 56 NY2d 627 for reasons stated below, see also, Matter of Ball [SFX Broadcasting], 236 AD2d 158, appeal dismissed 91 NY2d 921).

As a general matter, under New York law, unconscionability requires a showing that a contract is “both procedurally and substantively unconscionable when made” (Gillman v Chase Manhattan Bank, 73 NY2d 1, 10). That is, there must be “some showing of ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party’ [citation omitted]” (Matter of State of New York v Avco Fin. Servs., 50 NY2d 383, 389). The Avco Court took pains to note, however, that the purpose of this doctrine is not to redress the inequality between the parties but simply to ensure that the more powerful party cannot “ ‘surprise’ ” the other party with some overly oppressive term (supra, at 389).

As to the procedural element, a court will look to the contract formation process to determine if in fact one party lacked any meaningful choice in entering into the contract, taking into consideration such factors as the setting of the transaction, the experience and education of the party claiming unconscionability, whether the contract contained “fine print,” whether the seller used “high-pressured tactics” and any disparity in the parties’ bargaining power (Gillman v Chase Manhattan Bank, supra, at 11). None of these factors supports appellants’ claim here. Any purchaser has 30 days within which to thoroughly examine the contents of their shipment, including the terms of the Agreement, and seek clarification of any term therein (e.g., Matter of Ball [SFX Broadcasting], supra, at 161). The Agreement itself, which is entitled in large print “Standard Terms and Conditions Agreement,” consists of only four pages and 16 paragraphs, all of which appear in the same size print. Moreover, despite appellants’ claims to the contrary, the arbitration clause is in no way “hidden” or “tucked away” within a complex document of inordinate length, nor is the option of returning the merchandise, to avoid the contract, somehow a “precarious” one. We also reject appellants’ insinuation that, by using the word “standard,” Gateway deliberately *254meant to convey to the consumer that the terms were standard within the industry, when the document clearly purports to be no more than Gateway’s “standard terms and conditions.”

With respect to the substantive element, which entails an examination of the substance of the Agreement in order to determine whether the terms unreasonably favor one party (Gillman v Chase Manhattan Bank, supra, 73 NY2d, at 12), we do not find that the possible inconvenience of the chosen site (Chicago) alone rises to the level of unconscionability. We do find, however, that the excessive cost factor that is necessarily entailed in arbitrating before the ICC is unreasonable and surely serves to deter the individual consumer from invoking the process (see, Matter of Teleserve Sys. [MCI Telecommunications Corp.], 230 AD2d 585, 594, lv denied App Div, 1st Dept, Sept. 30, 1997, 1997 NY App Div LEXIS 10626). Barred from resorting to the courts by the arbitration clause in the first instance, the designation of a financially prohibitive forum effectively bars consumers from this forum as well; consumers are thus left with no forum at all in which to resolve a dispute. In this regard, we note that this particular claim is not mentioned in the Hill decision, which upheld the clause as part of an enforceable contract.

While it is true that, under New York law, unconscionability is generally predicated on the presence of both the procedural and substantive elements, the substantive element alone may be sufficient to render the terms of the provision at issue unenforceable (see, Gillman v Chase Manhattan Bank, supra, at 12; Matter of State of New York v Avco Fin. Servs., supra, at 389; State of New York v Wolowitz, 96 AD2d 47, 68). Excessive fees, such as those incurred under the ICC procedure, have been grounds for finding an arbitration provision unenforceable or commercially unreasonable (see, e.g., Matter of Teleserve Sys. [MCI Telecommunications Corp.], supra, at 593-594).

In the Filias case previously mentioned, the Federal District Court stated that it was “inclined to agree” with the argument that selection of the ICC rendered the clause unconscionable, but concluded that the issue was moot because Gateway had agreed to arbitrate before the American Arbitration Association (AAA) and sought court appointment of the AAA pursuant to Federal Arbitration Act (9 USC) § 5. The court accordingly granted Gateway’s motion to compel arbitration and appointed the AAA in lieu of the ICC. Plaintiffs in that action (who are represented by counsel for appellants before us) contend that costs associated with the AAA process are also excessive, given *255the amount of the individual consumer’s damages, and their motion for reconsideration of the court’s decision has not yet been decided. While the AAA rules and costs are not part of the record before us, the parties agree that there is a minimum, nonrefundable filing fee of $500, and appellants claim each consumer could spend in excess of $1,000 to arbitrate in this forum.

Gateway’s agreement to the substitution of the AAA is not limited to the Filias plaintiffs. Gateway’s brief includes the text of a new arbitration agreement that it claims has been extended to all customers, past, present and future (apparently through publication in a quarterly magazine sent to anyone who has ever purchased a Gateway product). The new arbitration agreement provides for the consumer’s choice of the AAA or the ICC as the arbitral body and the designation of any location for the arbitration by agreement of the parties, which “shall not be unreasonably withheld.” It also provides telephone numbers at which the AAA and the ICC may be reached for information regarding the “organizations and their procedures.”

As noted, however, appellants complain that the AAA fees are also excessive and thus in no way have they accepted defendant’s offer (see, UCC 2-209); because they make the same claim as to the AAA as they did with respect to the ICC, the issue of unconscionability is not rendered moot, as defendant suggests. We cannot determine on this record whether the AAA process and costs would be so “egregiously oppressive” that they, too, would be unconscionable (Avildsen v Prystay, 171 AD2d 13, 14, appeal dismissed 79 NY2d 841). Thus, we modify the order on appeal to the extent of finding that portion of the arbitration provision requiring arbitration before the ICC to be unconscionable and remand to Supreme Court so that the parties have the opportunity to seek appropriate substitution of an arbitrator pursuant to the Federal Arbitration Act (9 USC § 1 et seq.), which provides for such court designation of an arbitrator upon application of either party, where, for whatever reason, one is not otherwise designated (9 USC § 5).

Appellants make the final argument that the arbitration clause does not apply to the cause of action for false advertising (with respect to the promised round-the-clock service) under various sections of the General Business Law on the ground that there is no mention of arbitration in the technical service contract itself. Although they raise this claim for the first time on this appeal, we find the promise of technical sup*256port to be within the scope of arbitration as it is clearly a “dispute or controversy arising out or relating to [the] Agreement or its interpretation.” Put another way, the service contract does not apply to some separate product that could be retained while the computer products—and the accompanying agreement—could be returned.

Accordingly, the order of Supreme Court, New York County (Beatrice Shainswit, J.), entered October 21, 1997, which, to the extent appealed from, granted defendants’ motion to dismiss the complaint as to appellants on the ground that there was a valid agreement to arbitrate between tbe parties, should be modified, on the law and the facts, to the extent of vacating that portion of the arbitration agreement as requires arbitration before the International Chamber of Commerce, with leave to the parties to seek appointment of an arbitrator pursuant to 9 USC § 5 and remanding the matter for that purpose, and otherwise affirmed, without costs.

Nardelli, Mazzarelli and Saxe, JJ., concur.

Order, Supreme Court, New York County, entered October 21, 1997, modified, on the law and the facts, to the extent of vacating that portion of the arbitration agreement as requires arbitration before the International Chamber of Commerce, with leave to the parties to seek appointment of an arbitrator pursuant to 9 USC § 5 and remanding the matter for that purpose, and otherwise affirmed, without costs.

*408Kelleher, J.

This is a civil action wherein the plaintiff vendor seeks damages for the breach by the defendant ven*409dee of a contract for the sale of real estate. The defendant filed a counter-claim in which he sought the return of his deposit. A jury trial was held in the Superior Court. The jury found for the defendant and judgment followed. The case is before us on the plaintiff’s appeal.

On February 21, 1967, the parties hereto entered into a real estate agreement whereby plaintiff agreed to convey a one-family house located in Providence on the southeasterly corner of Way land and Upton Avenues to defendant for the sum of $54,000. The defendant paid a deposit' of $2,000 to plaintiff. The agreement provided for the delivery of the deed and the payment of the balance of the purchase price by June 30, 1967.

On May 17, 1967, a termite inspection was made of the premises, and it was discovered that the house was inhabited by termites. The defendant then notified plaintiff that, because of the termite infestation, he was not going to purchase the property. The defendant did not appear for the title closing which plaintiff had scheduled for June 30, 1967.

The plaintiff immediately commenced this suit. Her complaint prayed for specific performance or monetary damages.. When the case came on for trial, the property had been sold to another buyer for the sum of $35,000. The plaintiff then sought to recover from defendant the $19,000 difference between the selling price called for in the sales agreement and the actual selling price. The defendant in his answer alleged that plaintiff and her agent had, during the preagreement negotiation, intentionally misrepresented the house as being free of termites. The defendant’s counterclaim sought the return of the $2,000 deposit.

At the conclusion of the presentation of all the evidence, plaintiff made a motion for a directed verdict on the issue of the alleged fraudulent misrepresentations. The trial *410justice reserved decision on the motion and submitted the case to the jury. After the jury’s verdict, he denied the motion.

This case is unique in that plaintiff made no motion for a new trial. Her appeal is based for the most part on the trial court’s refusal to direct a verdict in her favor on the counterclaim. She has also alleged that the trial justice erred in certain portions of his charge to the jury and in failing to adopt some 15 requests to charge submitted by plaintiff.

The absence of a motion for a new trial narrows the scope of an inquiry on appeal. Instead of being concerned with the credibility of witnesses or the weight of the evidence as we would be were we reviewing the usual motion for a new trial, we apply the standards applicable to a motion for a directed verdict. In doing so, it is our duty to consider all of the evidence and reasonable inferences deducible therefrom in the light most favorable to defendant. Cofone v. Narragansett Racing Ass’n, Inc., 103 R. I. 345, 237 A.2d 717; Gramolini v. Marsalkowski, 102 R. I. 85, 228 A.2d 537.

Since we consider only the evidence favorable to defendant, we shall set forth defendant’s version of three different occasions in 1967 when the alleged misrepresentations relative to absence of any termites were made.

1. In early February, defendant and his wife inspected the Halpert home. They asked the agent about termites and he told them that there was no termite problem and that he had never experienced any termite problem with any of the houses he sold in the East Side section of Providence.

2. Later on in February, defendant, his wife, his sister-in-law and his brother-in-law met plaintiff. The brother-in-law inquired about the presence of termites; plaintiff said that there were no termites in the house.

*4113. When defendant was about to sign the purchase and sales agreement, he asked plaintiff's real estate agent whether it might not be advisable if the home be inspected for termites before the agreement was signed. The agent told defendant that such a step was unnecessary because there were no termite problems in the house.

The plaintiff contends that any statements or representations attributed to her or her agent were qualified in that when asked about the termites, they replied that to the best of their knowledge or experience the Wayland Avenue property was termite free. What she overlooks is that in our consideration of the correctness of the denial of her motion for a direction, we can consider only that evidence and the reasonable inferences flowing therefrom which favor defendant. We do not weigh the evidence to determine whether her or her agent's representations were qualified or unqualified. ■

In contending that she was entitled to a directed verdict, plaintiff contends that to sustain the charge of fraudulent misrepresentation, some evidence had to be produced showing that either, she or her agent knew at the time they said there were no termites in the house, that such a statement was untrue. Since the representations made to defendant were made in good faith, she argues that, as a matter of law, defendant could not prevail on his counterclaim:

The defendant concedes that there was no evidence which shows that plaintiff or her agent knowingly made false statements as to the existence of the termites but he •maintains that an innocent misrepresentation of a material fact is grounds for rescission of a contract where, as here, a party relies to his detriment on the misrepresentation.

We affirm the denial of the motion for a directed verdict.

The plaintiff, when she made her motion for a directed verdict, stated that her motion was restricted to the issue *412of “fraud.” The word “fraud” is a generic term which embraces a great variety of actionable wrongs. LaCourse v. Kiesel, 366 Pa. 385, 77 A.2d 877. It is a word of many meanings and defies any one all-inclusive definition. Fraud may become important either for the purpose of giving thé defrauded person the right to sue for damages in an action for deceit or to enable him to rescind the contract. 12 Williston, Contracts §1487 at 322 (Jaeger 3d ed. 1970). In this jurisdiction a party who has been induced by fraud to enter into a contract may pursue either one of two remedies. He may elect to rescind the contract to recover what he has paid under it, or he may affirm the contract and sue for damages in an action for deceit. Goodwin v. Silverman, 71 R. I. 163, 43 A.2d 50; Robinson v. Standard Stores, Inc., 52 R. I. 271, 160 A. 471; Moran v. Tucker, 40 R. I. 485, 101 A. 327.

The distinction between a claim for damages for intentional deceit and a claim for rescission is well defined. Deceit is a tort action, and it requires some degree of culpability on the misrepresenter’s part. Prosser, Law of Torts (3d ed.) §100. An individual who sues in an action of deceit based on fraud has the burden of proving that the defendant in making the statements knew they were false and intended to deceive him. Cliftex Clothing Co. v. DiSanto, 88 R. I. 338, 148 A.2d 273; Conti v. Walter Winters, Inc., 86 R. I. 456, 136 A.2d 622. On the other hand, a suit to rescind an agreement induced by fraud sounds in contract. It is this latter aspect of fraud that we are concerned with in this case, and the pivotal issue before us is whether an innocent misrepresentation of a material fact warrants the granting of a claim for rescission. We believe that it does.

When he denied plaintiff’s motion, the trial justice indicated that a false, though innocent, misrepresentation of a fact made as though of one’s knowledge may be the basis for the rescission of a contract. While this issue is one of *413first impression in this state, it is clear that the trial judge’s action finds support in the overwhelming weight of decisional and textual authority which has established the rule that where one induces another to enter into a contract by means of a material misrepresentation, the latter may rescind the contract. It does not matter if the representation was “innocent” or fraudulent.

In 12 Williston, supra, §1500 at 400-01, Professor Jaeger states:

“It is not necessary, in order that a contract may be rescinded for fraud or misrepresentation, that the party making the misrepresentation should have known that it was false. Innocent misrepresentation is sufficient, for though the representation may have been made innocently, it would be unjust and inequitable to permit a person who has made false representations, even innocently, to retain the fruits of a bargain induced by such representations.”

This statement of law is in accord with Restatement of Contracts, §476 at 908 which states:

“Where a party is induced to enter into a transaction with another party that he was under no duty to enter into by means of the latter’s fraud or material misrepresentation, the transaction is voidable as against the latter * *

Misrepresentation is defined as

“* * any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” Restatement of Contracts, §470 at 890-91.

The comment following this section explains that a misrepresentation may be innocent, negligent or known to be false. A misrepresentation becomes material when it becomes likely to affect the conduct of a reasonable man with reference to a transaction with another person. Restatement of Contracts, §470 (2) at 891. Section 28 of Restatement of Restitution is also in accord with this proposition of law that a transaction can be rescinded for innocent mis*414representation of a material fact. In addition, many courts have also adopted this rule including the following: Lehnhardt v. City, 105 Ariz. 142, 460 P.2d 637; Prudential Ins. Co. v. Anaya, 78 N. M. 101, 428 P.2d 640; Lanners v. Whitney, 247 Ore. 223, 428 P.2d 398; Hudspeth v. Zorn, (Mo.) 292 S.W.2d 271; Keeton Packing Co. v. State, (Tex.) 437 S.W.2d 20; Chesapeake Homes, Inc. v. McGrath, 249 Md. 480, 240 A.2d 245; Yorke v. Taylor, 332 Mass. 368, 124 N.E.2d 912; Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201; Seneca Wire & Mfg. Co. v. A. B. Leach & Co., 247 N. Y. 1, 159 N.E. 700; Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 127 A.2d 334.

In Watkins v. Grady County Soil & Water Conservation District, (Okla.) 438 P.2d 491, 495, the court ordered cancellation of an easement agreement that was procured by a material misrepresentation honestly made with no intent to deceive. The court reasoned that the question is “* * * not whether the representation is knowingly false, but whether the other party believed it to be true and thus was misled by such misrepresentations into making the contract.”

In Williams v. Benson, 3 Mich. App. 9, 141 N.W.2d 650, the court indicated that relief would be available if there was in fact a misrepresentation, though made innocently, and if its deceptive influence was effective, the consequences to the plaintiff being as serious as though it proceeded from a vicious purpose. Citing Converse v. Blumrich, 14 Mich. 109, the court said that in determining whether relief is appropriate, courts must look to the effect of the untrue statement upon the person to whom it is made, rather than to the motive of the one making the representation.

In Ham v. Hart, 58 N. M. 550, 273 P.2d 748, the court in holding that the honesty and good faith of the person making misrepresentations is immaterial, quoted the fol*415lowing excerpt from 1 Story Equity Jurisprudence §272 (14 ed.):

“ 'Whether the party thus misrepresenting a material fact knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally in morals and law as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive; for it operates as a surprise and imposition upon the other party.’ ” 58 N. M. at 552, 273 P.2d at 749.

It is true that some courts require proof of knowledge of the falsity of the misrepresentation before a contract may be invalidated. Wilkinson v. Appleton, 28 Ill. 2d 184, 190 N.E.2d 727; Classic Bowl, Inc. v. AMF Pinspotters, Inc., 403 F.2d 463; Southern Roofing & Petroleum Co. v. Aetna Ins. Co., 293 F. Supp. 725. However, the weight of authority follows the view that the misrepresenter’s good faith is immaterial. We believe this view the better one.

A misrepresentation, even though innocently made, may be actionable, if made and relied on as a positive statement of fact. The question to be resolved in determining whether a wrong committed as the result of an innocent misrepresentation may be rectified is succinctly stated in 12 Willis-ton, supra, §1510 at 462 as follows:

“When a defendant has induced another to act by representations false in fact although not dishonestly made, and damage has directly resulted from the action taken, who should bear the loss?”

The question we submit is rhetorical. The answer is obvious. Simple justice demands that the speaker be held responsible. Accordingly, we hold that here defendant vendee could maintain his counterclaim.

The plaintiff’s second contention is to the effect that even if an innocent misrepresentation without knowledge *416of, its falsity may under certain circumstances entitle the misrepresentee to relief by way of rescission, defendant cannot maintain his action because the sales agreement contains a merger clause. This provision immediately precedes the testimoniujn clause and provides that the contract * * contains the entire agreement between the parties, and that it is subject to no understandings, conditions or representations other than those expressly stated herein.” The plaintiff argues that in order to enable a purchaser to rescind a contract containing a merger clause because of a misrepresentation, proof of a fraudulent misrepresentation must be shown. We find no merit in this argument.

If, as plaintiff concedes, a merger clause, such as is found within the sales contract now before us, will not prevent a rescission based on a fraudulent misrepresentation,1 there is no valid reason to say that it will prevent a rescission of an agreement which is the result of a false though innocent misrepresentation where both innocent and fraudulent misrepresentations render a contract voidable. See Restatement of Contracts, §476. As we observed before, the availability of the remedy of rescission is motivated by the obvious inequity of allowing a person who has made the innocent misrepresentation to retain the fruits of the bargain induced thereby. If we are to permit a party to rescind a contract which is the result of an innocent misrepresentation, the “boiler plate” found in the merger clause shall not bar the use of this remedy.

The plaintiff also makes much ado about the difference between what the vendee alleged in his counterclaim and what he proved at trial. She directs our attention to the *417undisputed fact that defendant pleaded an intentional misrepresentation of fact, whereas at trial he adduced evidence which would show that the contract was signed because of the innocent misrepresentation about the termites.

While the difference between defendant’s “allegata” and his “probata” might have had some significance in the days prior to the adoption of the new rules of civil procedure in the Superior Court, we observed in Cofone v. Narragansett Racing Ass’n, Inc., supra, that the common-law requirement that the proof conform to the pleadings is no longer the law in this jurisdiction. It has been negated, we said, by that portion of Rule 15 (b) which provides that where an issue is tried in a cause by the expressed or implied consent of the parties, it shall be treated in all respects as if it had been pleaded even in the absence of amendment. An examination of the record shows that at no time during the Superior Court trial did plaintiff make objection to the trial justice that defendant’s evidence was at variance with his plea. The only objection lodged by plaintiff to defendant’s evidence relative to the alleged misrepresentations was that it violated the provisions of the contract’s merger clause. Later in the trial, plaintiff stated that she would show that defendant’s failure to purchase her home was due to reasons other than the presence of the termites. We therefore hold that plaintiff’s complaint of a variance between the pleading and the proof comes too late in this litigation to warrant any consideration.

Before leaving this phase of plaintiff’s appeal, we think it appropriate that we allude to the tendency of many courts to equate an innocent misrepresentation with some species of fraud. Usually the word “fraud” connotes a conscious dishonest conduct on the part of the misrepresenter. Fraud, however, is not present if the speaker actually believes that what he states as the truth is the truth. *418We believe that it’ would be better if an innocent misrepresentation was not described as some specie of fraud. Unqualified statements imply certainty. Reliance is more likely to be placed on a positive statement of fact than a mere expression of opinion or a qualified statement. The speaker who uses the unqualified statement does so at his peril. The risk of falsity is his. If he is to be liable for what he states, the liability is imposed because he is to be held strictly accountable for his words. Responsibility for an innocent misrepresentation should be recognized for what it is&emdash;an example of absolute liability rather than as many courts have said, an example of constructive fraud. See 12 Williston, supra, §1510; 1 Harper and James, The Law of Torts §7.7.

When we consider plaintiff’s allegations as to the errors committed by the trial justice in charging or in failing to charge the jury, we note that in most instances she has failed to comply with that portion of Rule 51 of Super. R. Civ. P. which states that a person objecting to the giving of or failure to give certain instructions shall specifically state the grounds for his objection. This provision is designed to give the trial justice an opportunity to correct any error in his charge. While plaintiff has lodged numerous objections to the charge as given and to the court’s failure to charge, she has in most instances given no reason for any of the objections made. We shall not consider any of the objections taken to the trial justice’s failure to give the requested instructions, and we shall consider only those objections to the charge where there has been some attempt at compliance with the rule or where the reason for the objection is obvious. See Paquin v. Providence Washington Ins. Co., 106 R. I. 267, 259 A.2d 115.

The plaintiff first contends that the trial justice failed to instruct the jury that the burden of proof as to the issue of misrepresentation was upon defendant. This argument *419is without merit. At one point in his instructions the trial justice made this statement:

“The defendant cannot avoid his contract unless you find, by a fair preponderance of the evidence, that a misrepresentation of fact was made to him by the plaintiff or her agent and that such a misrepresentation was material to the action here disputed.”

While this portion of the charge did not specifically state that it was defendant’s burden of proof to show that a misrepresentation had been made, in our opinion it adequately conveyed to the jury the obligation which this concept placed on the proponent of an issue. In addition, the trial justice earlier in his instructions had explained to the jury the phrase “preponderance of the evidence.” Although the instructions are somewhat cryptic, the jury’s verdict is proof positive that defendant had convinced the jury that the representations attributed to plaintiff had been made.

The plaintiff states that the trial judge should have instructed the jury that misrepresentations had to be proved by “clear and convincing evidence” and not by a “preponderance of the evidence” as they were charged. Wé disagree. Long ago in Smith v. Rhode Island Co., 39 E. I. 146, 98 A. 1, we stated in clear and express language that fraud must be proved by a preponderance of the evidence, and there is no reason why we should require a higher degree of proof when the good faith of the misrepresenter is unquestioned. •

The plaintiff complains that the trial justice erred when he told the jury that 'defendant could recover even though he might have been “negligent” in signing the sales agree-*420merit2 The thrust of this objection is plaintiff’s contention that either defendant’s neglect to include in the contract, a clause which would have protected his interest in the event termites were found on the property or his failure to have the premises inspected for termites prevents his recovery of the deposit. Such an argument is really aimed at the question of whether or not defendant was justified in relying on the representations made by plaintiff and her agent. We can see nothing patently absurd or ridiculous in the statements attributed to them which would warrant us in saying that defendant should be denied relief because of his failure to do what plaintiff now says he should have done. On the record before us, defendant was amply justified in believing that the home he was purchasing was free of termites.

The plaintiff’s final objection on her appeal is directed toward the refusal of the trial justice to allow her in two instances to attempt to impeach the credibility of defendant by using his answers to interrogatories as evidence of a prior inconsistent statement. Rule 33 (b) provides that answers to interrogatories may be used at trial to the same extent as provided in Rule 26 (d) for use of the deposition of a party. This means, in effect, that answers to interrogatories can be used by an adverse party for any purpose, including impeaching the credibility of a party as a witness, subject, however, to the evidentiary rules of admissibility.

On cross-examination plaintiff attempted to impeach the credibility of defendant in accordance with the rules stated *421above by showing that in answering interrogatories propounded to him, defendant stated that misrepresentations as to termites were made to his mother-in-law during the negotiation period. We note, however, that in direct examination, defendant made no reference • whatsoever as to what was said or not said to his mother-in-law regarding termites. Whether cross-examination should be permitted beyond those matters testified to by a witness on direct examination is a matter vested within the sound discretion of the trial judge and his exercise thereof will not be disturbed except upon a clear showing of an abuse of such discretion. State v. Campbell, 95 R. I. 370, 187 A.2d 543. The question propounded by plaintiff was not in cross-examination of anything testified to by defendant in direct examination. On the record before us we can see no abuse of the trial court’s discretion. See Vingi v. Trillo, 77 R. I. 55, 73 A.2d 43.

Thereafter, later in the trial, plaintiff called defendant to the stand under the adverse party rule, G. L. 1956 (1969 Reenactment) §9-17-14, and attempted a second time to introduce the interrogatories for impeachment purposes. Again, the trial justice prohibited this line of questioning. Without making a determination as to the validity of this procedure under the adverse party rule, we find that there was no error. In Urbani v. Razza, 103 R. I. 445, 449, 238 A.2d 383, 386, we held that an exclusion of evidence, even if wrongful, will not suffice for a reversal unless the evidence excluded “* * * was relevant and material to a crucial issue and if it can with reason be said that such evidence, if admitted, would properly have influenced the verdict or had a controlling influence on a material aspect of the case.”

As we have noted above, the record clearly discloses considerable evidence pertinent to the misrepresentation issue. Even if we were to assume that the exclusion of the in*422terrogatories was improper, we are unable to say that it would have had such a substantial influence on the jury, if admitted, as to cause it to return a contrary verdict to that which it did. See Romanelli v. A. B. C., Inc., 104 R. I. 689, 248 A.2d 598.

Alfred M. Silverstein, for plaintiff.

Leonard Decof, for defendant.

The appeal of the plaintiff is denied and dismissed, and the case is remanded to the Superior Court for entry of judgment thereon.

Motion for reargument denied.

The opinion of the Court was delivered by

Jacobs, J.

The judgment entered in the Law Division, as modified in an unreported opinion of the Appellate Division, directed that the appellants Donald P. Krobatsch and Estella Krobatsch, his wife, pay the sum of $4,250 to the plaintiff Natalie Weintraub and the sum of $2,550 to the defendant The Serafín Agency, Inc. We granted certification on the application of the appellants. 63 N. J. 498 (1973).

The procedural steps below need not be dealt with at this point, other than to note that oral testimony was never taken and the matter was disposed of by summary judgment on the basis of meagre pleadings and conclusory affidavits. Eor present purposes we must resolve doubts in favor of the appellants • and must accept their factual allegations, along with the- inferences most favorable to- them. See Ruvolo v. *447American Cas. Co., 39 N. J. 490, 499 (1963); Frank Rizzo, Inc. v. Alatsas, 27 N. J. 400, 405 (1958); Heuter v. Coastal Air Lines, Inc., 12 N. J. Super. 490, 495 (App. Div. 1951). -On that approach the following appears:

Mrs. Weintraub owned and occupied a six-year-old English-town home which she placed in the hands of a real estate broker (The Serafín Agency, Inc.) for sale. The Krobatsches were interested in purchasing the home, examined it while it was illuminated and found it suitable. On June 30, 1971 Mrs. Weintraub, as seller, and the Krobatsehes, as purchasers, entered into a contract for the sale of the property for $42,500. The contract provided that the purchasers had inspected the property and were fully satisfied with its physical condition, that no representations had been made and that no responsibility was assumed by the seller as to the present or future condition of the premises. A deposit of $4,250 was sent by the purchasers to the broker to be held in escrow pending the closing of the transaction. The purchasers requested that the seller have the house fumigated and that was done. A fire after the signing of the contract caused damage but the purchasers indicated readiness that there be adjustment at closing.

During the evening of August 25, 1971, prior to closing, the purchasers entered the house, then unoccupied, and as they turned the lights on they were, as described in their petition for certification, “astonished to see roaches literally running in all directions, up the walls, drapes, etc.” On the following day their attorney wrote a letter to Mrs. Weintraub, care of her New York law firm, advising that on the previous day “it was discovered that the house is infested with vermin despite the fact that an exterminator has only recently serviced the house” and asserting that “the presence of vermin in such great quantities, particularly after the exterminator was done, rendered the house as unfit for human habitation at this time and therefore, the contract is rescinded.” On September 2, 1971 an exterminator wrote to Mr. Krobatseh advising that he had examined the premises *448and that “cockroaches were found to have infested the entire house.” He said he could eliminate them for a relatively modest charge by two treatments with a twenty-one day interval but that it would be necessary to remove the carpeting “to properly treat all the infested areas.”

Mrs. Weintraub rejected the rescission by the purchasers and filed an action in the Law Division joining them and the broker as defendants. Though she originally sought specific performance she later confined her claim to damages in the sum of $4,250, representing the deposit held in escrow by the broker. The broker filed an answer and counterclaim seeking payment of its commission in the sum of $2,550. There were opposing motions for summary judgment by the purchasers and Mrs. Weintraub, along with a motion for summary judgment by the broker for its commission. At the argument on the motions it was evident that the purchasers were claiming fraudulent concealment or nondisclosure by the seller as the basis for th’eir rescission. Thus at one point their attorney said: “Your honor, I would point out, and it is in my clients’ affidavit, every time that they inspected this house prior to this time every light in the place was illuminated. Now, these insects are nocturnal by nature and that is not a point I think I have to prove through someone. I think Webster’s dictionary is sufficient. By keeping the lights on it keeps them out of sight. These sellers had to know they had this problem. You could not live in a house this infested without knowing about it.”

The Law Division denied the motion by the purchasers for summary judgment but granted Mrs. Weintraub’s motion and directed that the purchasers pay her the sum of $4,250. It further directed that the deposit monies held in escrow by the broker be paid to Mrs. Weintraub in satisfaction of her judgment against the purchasers. See Oliver v. Lawson, 92 N. J. Super. 331, 333 (App. Div. 1966), cerlif. denied, 48 N. J. 574 (1967). It denied the broker’s summary judgment motion for its commission but held that matter for trial. On *449appeal, the Appellate División sustained the summary judgment in Mrs. Weintraub’s favor but disagreed with the Law Division’s holding that the broker’s claim must await trial. It considered that since the purchasers were summarily held to have been in default in rescinding rather than in proceeding with the closing, they were responsible for the commission. See Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528, 558-62 (1967). Accordingly, it modified the Law Division’s judgment to the end that the purchasers were directed to pay not only the sum of $4,250 to Mrs. Weintraub but also the sum of $2,550 to the broker.

Before us the purchasers contend that they were entitled to a trial on the issue of whether there was fraudulent concealment or nondisclosure entitling them to rescind; if there was then clearly they were under no liability to either the seller or the broker and would be entitled to the return of their deposit held by the broker in escrow. See Keen v. James, 39 N. J. Eq. 527, 540 (E. & A. 1885), where Justice Dixon, speaking for the then Court of last resort, pointed out that “silence may be fraudulent” and that relief may be granted to one contractual party where the other suppresses facts which he, “ hinder the circumstances, is bound in conscience and duty to disclose to the other party, and in respect to which he cannot, innocently, be silent.’ ” 39 N. J. Eq. at 540-41. See also Grossman Furniture Co. v. Pierre, 119 N. J. Super. 411, 420 (Essex Co. Ct. 1972); Heuter v. Coastal Air Lines, Inc., supra, 12 N. J. Super, at 495-97; 12 Williston, Contracts § 1498 (3d ed. 1970); Prosser, Torts 695-99 (4th ed. 1971); Keeton, “Fraud — Concealment and Non-Disclosure,” 15 Tex. L. Rev. 1 (1936); Goldfarb, “Fraud and Nondisclosure in the Vendor-Purchaser Relation,” 8 Wes. Res. L. Rev. 5 (1956).

Mrs. Weintraub asserts that she was unaware of the infestation and the Krobatsches acknowledge that, if that was so, then there was no fraudulent concealment or nondisclosure on her part and their claim must fall. But the purchasers allege that she was in fact aware of the infestation and at *450this stage of the proceedings we must assume that to be true. S'he contends, however, that even if she were fully aware she would have been under no duty to speak and that consequently no complaint by the purchasers may legally be grounded on her silence. She relies primarily on cases such as Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 42 N. E. 2d 808, 141 A. L. R. 965 (1942), and Taylor v. Heisinger, 39 Misc. 2d 955, 242 N. Y. S. 2d 281 (Sup. Ct. 1963). Taylor is not really pertinent since there the court found that the seller had “no demonstrated nor- inferable knowledge of the condition complained of.” 242 N. Y. S. 2d at 286. Sivinton is pertinent but, as Dean Prosser has noted (Prosser, supra at 696), it is one of a line of “singularly unappetizing cases” which are surely out of tune with our times.

In Swinion the plaintiff purchased a house from the defendant and after he occupied it he found it to be infested with termites. The defendant had made no verbal or written representations but the plaintiff, asserting that the defendant knew of the termites and was under a duty to speak, filed a complaint for damages grounded on fraudulent concealment. The Supreme Judicial Court of Massachusetts sustained a demurrer to the complaint and entered judgment for the defendant. In the course of its opinion the court acknowledged that “the plaintiff possesses a certain appeal to the moral sense” but concluded that the law has not “reached the point of imposing upon the frailties of human nature a standard so idealistic as this.” 42 N. E. 2d at 808-809. That was written several decades ago and we are far from certain that it represents views held by the current members of the Massachusetts court. See Kannavos v. Annino, 356 Mass. 42, 247 N. E. 2d 708, 711 (1969). In any event we are certain that it does not represent our sense of justice or fair dealing and it has understandably been rejected in persuasive opinions elsewhere. See Obde v. Schlemeyer, 56 Wash. 2d 449, 353 P. 2d 672 (1960); Loghry v. Capel, 257 Iowa 285, 132 N. W. 2d 417 (1965); Williams v. Benson, 3 Mich. App. 9, 141 N. W. 2d 650 (1966); Sorrell v. Young, 6 Wash. App. 220, *451491 P. 2d 1312 (1971); Lawson v. Citizens & Southern National Bank of S. C., 259 S. C. 477, 193 S. E. 2d 124 (1972); cf. Clauser v. Taylor, 44 Cal. App. 2d 453, 112 P. 2d 661 (1941); Simmons v. Evans, 185 Tenn. 282, 206 S. W. 2d 295 (1947); Piazzini v. Jessup, 153 Cal. App. 2d 58, 314 P. 2d 196 (1957); Rich v. Rankl, 6 Conn. Cir. 185, 269 A. 2d 84, 88 (1969); Ford v. Broussard, 248 So. 2d 629 (La. App. 1971). See also Restatement 2d, Torts § 551 (Tent. Draft No. 12 (1966)); Keeton, “Rights of Disappointed Purchasers,” 32 Tex. L. Rev. 1 (1953); cf. Bixby, “Let the. Seller Beware: Remedies for the Purdhase of a Defective Home,” 49 J. Urban Law 533 (1971); Haskell, “The Case for an Implied Warranty of Quality in Sales of Real Prop-, erty,” 53 Geo. L. J. 633 (1965); Note, “Implied Warranties, in Sales of Real Estate ■— The Trend to Abolish Caveat Emptor,” 22 DePaul L. Rev. 510 (1972).

In Obde v. Schlemeyer, supra, 56 Wash. 2d 449, 353 P. 2d 672, the defendants sold an apartment house to the plaintiffs. The house was termite infested but that-fact was not disclosed by the sellers to the purchasers who later sued for damages alleging fraudulent concealment. The sellers contended that they were under no obligation whatever to speak out and they relied heavily on the decision of the Massachusetts court in Swinton (311 Mass. 677, 42 N. E. 2d 808, 141 A. L. R. 965). The Supreme Court of Washington flatly rejected their contention, holding that though the parties had dealt at arms length the sellers were under “a duty to inform the plaintiffs of the termite condition” of which they were fully aware. 353 P. 2d at 674; cf. Hughes v. Stusser, 68 Wash. 2d 707, 415 P. 2d 89, 92 (1966). In the course of its opinion the court quoted approvingly from Dean Keeton’s article supra, in 15 Tex. L. Rev. 1. There the author first expressed his thought that when Lord Cairns suggested in Peek v. Gurney, L. R. 6 H. L. 377 (1873), that there was no duty to disclose facts, no matter how “morally censurable” (at 403), he was expressing nineteenth century law as shaped by an individualistic philosophy based on freedom. *452of contracts and unconcerned with morals. He then made the following comments which fairly embody a. currently acceptable principle on which the holding in OI de may be said to be grounded:

In the present stage of the law, the decisions show a drawing away from this idea, and there can be seen an attempt by many courts to reach a just result in so far as possible, but yet maintaining the degree of certainty which the law must have. The statement may often be found that if either party to a contract of sale conceals or suppresses a material fact which he is in good faith bound to disclose then his silence is fraudulent.

The attitude of the courts toward nondisclosure is undergoing a change and contrary to Lord Cairns’ famous remark it would seem that the object of the law in these cases should be to impose on parties to the transaction a duty to speak whenever justice, equity, and fair dealing demand it. This statement is made only with reference to instances where the party to be charged is an actor in the transaction. This duty to speak does not result from an implied representation by silence, but exists because a refusal to speak constitutes unfair conduct. 15 Tex. L. Rev. at 31.

In Sorrell v. Young, supra, the Court of Appeals of Washington reeently applied the holding in Obde v. Schlemeyer, supra, to a ease where the sellers sold a residential lot to the buyers without disclosing that the lot had been filled. The buyers’ evidence indicated the following: when the sellers originally acquired the lot it was below street grade and had been partially filled. They completed the filling and kept the lot until they considered it salable. At the time of the sale the fact that the land had been filled was not apparent. The sellers did not mention it at all and the buyers made no inquiry. The buyers sought a building permit and were told that expensive soil tests would be required, that piling would be necessary and that there was no assurance that a house could be built even if piling was installed. The court held that the buyers’ evidence, if accepted, would support a right to rescind. In the course of its opinion it had this to say:

... by the turn of the century, Washington had recognized that “the tendency of the more recent cases has been to restrict rather *453than extend the doctrine of caveat emptor.” Wooddy v. Benton Water Co., 54 Wash. 124, 127, 102 P. 1054, 1056 (1909). And, “[a]s would be expected when change in the law is taking place, there is no unanimity” in the decisions of other jurisdictions. Keeton, Rights of Disappointed Purchasers, 32 Tex. L. Rev. 1, 4 (1953). However, there is an “amorphous tendency” on the part of most courts to grant relief to a purchaser for nondisclosure of facts which would probably affect the purchaser’s decision to purchase. W. Prosser, Torts § 101 (3d. ed. 1964). And consistent with Restatement of Torts § 551, comment 6 (1938), relief by way of rescission is more readily granted than damages. W. Prosser, Torts § 105 (3d ed. 1964). 491 P. 2d at 1314.

In Loghry v. Capel, supra, the plaintiffs purchased a duplex from the defendants. They examined the house briefly on two occasions and signed a document stating that they accepted the property in its “present condition.” 132 N. W. 2cü at 419. They made no inquiry about the subsoil and were not told that the house had been constructed on filled ground. They filed an action for damages charging that the sellers had fraudulently failed to disclose that the duplex was constructed on improperly compacted filled ground. The jury found in their favor and the verdict was sustained on appeal in an opinion which pointed out that “fraud may consist of concealment of a material fact.” 132 N. W. 2d at 419. The purchasers’ stipulation that they accepted the property in its present condition could not be invoked to bar their claim. See Wolford v. Freeman, 150 Neb. 537, 35 N. W. 2d 98 (1948), where the court pointed out that the purchase of property “as is” does not bar rescission grounded on fraudulent conduct of the seller. 35 N. W. 2d at 103.

In Simmons v. Evans, supra, the defendants owned a home which was serviced by a local water company. The company supplied water during the daytime but not at night. The defendants sold their home to the plaintiffs but made no mention of the limitation on the water service. The plaintiffs filed an action to rescind their purchase but the lower court dismissed it on the ground that the defendants had not made anjr written or verbal representations and the plaintiffs had “inspected the property, knew the source of the water sup*454ply, and could have made specific inquiry of these defendants or ascertained from other sources the true situation and, therefore, are estopped.” 206 8. W. 2d at 296. The dismissal was reversed on appeal in an opinion which took note of the general rule that “ ‘one may be guilty of fraud by his silence, as where it is expressly incumbent upon him to speak concerning material matters that are entirely within his own knowledge.’” 206 8. W. 2d at 296. With respect to the plaintiffs’ failure to ascertain the water situation before their purchase the court stated that the plaintiffs were surely not required “to make a night inspection in order to ascertain whether the water situation with reference to this residence was different from what it was during the day.” 206 8. W. 2d at 297.

In Saporta v. Barbagelata, 220 Cal. App. 2d 463, 33 Cal. Rptr. 661 (1963), the plaintiffs sought to rescind their purchase of a house on the ground that they were defrauded by the seller’s real estate agent or broker, “by reason of the concealment and nondisclosure that said house contained an extensive termite and fungus infestation, and by certain representations that said house was not so infested.” A summary judgment against the plaintiffs was granted by the trial judge but was reversed on appeal in an opinion which set forth the following which we consider of particular pertinence to the present stage of litigation in the matter before us:

The principles controlling the conduct of a real estate agent or broker in the sale of real estate are well established in this state. He is not only liable to a buyer for his affirmative and intentional misrepresentations to a buyer, but he is also liable for mere nondisclosure to the buyer of defects known to him and unknown and unobservable by the buyer. (Lingsch v. Savage, 213 Cal. App. 2d 729, 29 Cal. Rptr. 201; Crawford v. Nastos, 182 Cal. App. 2d 659, 665, 6 Cal. Rptr. 425; Rothstein v. Janss Investment Corp., 45 Cal. App. 2d 64, 73, 113 P. 2d 465; Rogers v. Warden, 20 Cal. 2d 286, 289, 125 P. 2d 7.) The underlying settled rule is that every person connected with a fraud is liable for the full amount of the damages and the wrongdoers, if any, are jointly and severally liable. (Crawford v. Nastos, supra, 182 Cal. App. 2d p. 665, 6 Cal. Rptr. p. 429; *455Swasey v. deL’Etanche, 17 Cal. App. 2d 713, 718, 62 P. 2d 753; Ross v. George Pepperdine Foundation, 174 Cal. App. 2d 135, 141-142, 344 P. 2d 368). Whether a matter not disclosed by a real estate broker or agent is of sufficient materiality to affect the desirability or value of the property sold, and thus make him liable for fraudulent nondisclosure, depends upon the facts of each case. (Lingsch v. Savage, supra, 213 Cal. App. 2d 729, 29 Cal. Rptr. p. 205.) In the case at bench we have allegations which present triable issues of fact tendered not only on the basis of positive misstatements and misrepresentations of fact allegedly made by Dolman, but also the alleged suppression and nondisclosure of facts known to him and unknown and unobservable by plaintiffs. 33 Cal. Rptr. at 667.

As in Suporta, supra, the purchasers here were entitled to withstand the seller’s motion for summary judgment. They should have been permitted to proceed with their efforts to establish by testimony that they were equitably entitled to rescind because the house was extensively infested in the manner described by them, the seller was well aware of the infestation, and the seller deliberately concealed or failed to disclose the condition because of the likelihood that it would defeat the transaction. The seller may of course defend factually as well as legally and since the matter is primarily equitable in nature the factual as well as legal disputes will be for the trial judge alone. See Hubbard v. International Mercantile Agency, 68 N. J. Eq. 434, 436 (Ch. 1904); Keuper v. Pyramid Bond & Mortgage Corp., 117 N. J. Eq. 110, 114-115 (E. & A. 1934); cf. Steiner v. Stein, 2 N. J. 367 (1949); Bilotti v. Accurate Forming Corp., 39 N. J. 184, 198-199 (1963).

If the trial judge finds such deliberate concealment or nondisclosure of the latent infestation not observable by the purchasers on their inspection, he will still be called upon to determine whether, in the light of the full presentation before him, the concealment or nondisclosure was of such significant nature as to justify rescission. Minor conditions which ordinary sellers and purchasers would reasonably disregard as of little or no materiality in the transaction would clearly not call for judicial intervention. While the described condition may not have been quite as major as in the termite *456cases which were concerned with structural impairments, to the purchasers here it apparently was of such magnitude and was so repulsive as to cause them to rescind immediately though they had earlier indicated readiness that there he adjustment at closing for damage resulting from a fire which occurred after the contract was signed. We are not prepared at his time to say that on their showing they acted either unreasonably or without equitable justification.

Our courts have come a long way since the days when the judicial emphasis was on formal rules and ancient precedents rather than on modern concepts of justice and fair dealing. While admittedly our law has progressed more slowly in the real property field than in other fields, there have been notable stirrings even there. See Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965); Reste Realty Corporation v. Cooper, 53 N. J. 444 (1969); cf. Marini v. Ireland, 56 N. J. 130 (1970); Totten v. Gruzen, et al., 52 N. J. 202 (1968). In Schipper we elevated the duties of the builder-vendor in the sale of its homes and in the course of our opinion we repeatedly stressed that our law should be based on current notions of what is “right and just.” 44 N. J. at 90. In Reste we expressed similar thoughts in connection with the lease of real property. We there noted that despite the lessee’s acceptance of the premises in their “present condition” (a stipulation comparable to that of the purchasers in their contract here), the landlord was under a duty to disclose a material latent condition, known to him but unobservable by the tenant; we pointed out that in the circumstances “it would be a wholly inequitable application of caveat emptor to charge her with knowledge of it.” 53 N. J. at 453-454. Both Schipper and Reste were departures from earlier decisions which are nonetheless still relied on by the seller here. No purpose would now be served by pursuing any discussion of those earlier decisions since we are satisfied that current principles grounded on justice and fair dealing, embraced throughout this opinion, clearly call for a full trial below; *457to that end the judgment entered in the Appellate Division is:

Reversed and remanded.

For reversal and remandment — Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clivvokd and Judge Convoke—6.

For affirmance—Hone.

Opinion

SULLIVAN, C. J.

This appeal2 arises out of a complaint filed by the plaintiff, Gregory D. Hanks, against the defendants, Powder Ridge Restaurant Corporation and White Water Mountain Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, seeking compensatory damages for injuries the plaintiff sustained while snowtubing at the defendants’ facility. The trial court rendered summary judgment in favor of the defendants, concluding that this court’s decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003), precluded the plaintiffs negligence claim as a matter of law. We reverse the judgment of the trial court.

The record reveals the following factual and procedural history. The defendants operate a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On February 16, 2003, the plaintiff brought his three children and another child to Powder Ridge to snowtube. Neither the plaintiff nor the four children had ever snowtubed at Powder Ridge, but the snowtub*317ing ran was open to the public generally, regardless of prior snowtubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. Further, in order to snowtube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability” (agreement). The plaintiff read and signed the agreement on behalf of himself and the four children. While snowtubing, the plaintiffs right foot became caught between his snow-tube and the man-made bank of the snowtubing ran, resulting in serious injuries that required multiple surgeries to repair.

Thereafter, the plaintiff filed the present negligence action against the defendants. Specifically, the plaintiff alleges that the defendants negligently caused his injuries by: (1) permitting the plaintiff “to ride in a snow tube that was not of sufficient size to ensure his safety while on the snow tubing run”; (2) “fail[ing] to properly train, supervise, control or otherwise instruct the operators of the snow tubing ran in the proper way to ran the snow tubing course to ensure the safety of the patrons, such as the plaintiff’; (3) “fail[ing] to properly groom the snow tubing ran so as to direct patrons . . . such as the plaintiff away from the sidewalls of [the] ran”; (4) “placing] carpet at the end of the snow tubing run which had the tendency to cause the snow tubes to come to an abrupt halt, spin or otherwise change direction”; (5) “failing] to properly landscape the snow tubing run so as to provide an adequate up slope at the end of the run to properly and safely slow snow tubing patrons such as the plaintiff’; (6) “fail[ing] to place warning signs on said snow tubing ran to warn patrons such as the plaintiff of the danger of colliding with the side wall of [the] snow tubing ran”; and (7) “fail[ing] to place hay bales or other similar materials on the sides of the snow tubing ran in order to direct patrons *318such as the plaintiff away from the sidewalls of [the] run.”

The defendants, in their answer to the complaint, denied the plaintiffs allegations of negligence and asserted two special defenses. Specifically, the defendants alleged that the plaintiffs injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Thereafter, the defendants moved for summary judgment, claiming that the agreement barred the plaintiffs negligence claim as a matter of law. The trial court agreed and rendered summary judgment in favor of the defendants. Specifically, the trial court determined, pursuant to our decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640-44, that the plaintiff, by signing the agreement, unambiguously had released the defendants from liability for their allegedly negligent conduct. Thereafter, the plaintiff moved to reargue the motion for summary judgment. The trial court denied the plaintiffs motion and this appeal followed.

The plaintiff raises two claims on appeal. First, the plaintiff claims that the trial court improperly concluded that the agreement clearly and expressly releases the defendants from liability for negligence. Specifically, the plaintiff contends that a person of ordinary intelligence reasonably would not have believed that, by signing the agreement, he or she was releasing the defendants from liability for personal injuries caused by negligence and, therefore, pursuant to Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643, the agreement does not bar the plaintiffs negligence claim. Second, the plaintiff claims that the agreement is unenforceable because it violates public policy. Specifically, the plaintiff contends that a recreational operator cannot, consistent with public *319policy, release itself from liability for its own negligent conduct where, as in the present case, the operator offers its services to the public generally, for a fee, and requires patrons to sign a standardized exculpatory agreement as a condition of participation. We disagree with the plaintiffs first claim, but agree with his second claim.

Before reaching the substance of the plaintiffs claims on appeal, we review this court’s decision in Hyson. The plaintiff in Hyson was injured while snowtubing at Powder Ridge and, thereafter, filed a complaint against the defendant, White Water Mountain Resorts of Connecticut, Inc., alleging that the defendant’s negligence proximately had caused her injuries.3 Id., 637-39. Prior to snowtubing at Powder Ridge, the plaintiff had signed an exculpatory agreement entitled “RELEASE FROM LIABILITY.” Id., 638 and n.3. The issue presented in Hyson was whether the exculpatory agreement released the defendant from liability for its negligent conduct and, consequently, barred the plaintiffs negligence claims as a matter of law. Id., 640. We concluded that it did not. Id.

In arriving at this conclusion, we noted that there exists “widespread support in other jurisdictions for a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly”; id., 641-42; and that this court previously had acknowledged “the well established principle . . . that ‘[t]he law does not favor contract provisions which relieve a person from his own negligence ....’” Id., 643. Accordingly, we determined that “the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of *320language that expressly so provides.” Id. This rule “prevents individuals from inadvertently relinquishing valuable legal rights” and “does not impose . . . significant cost[s]” on entities seeking to exculpate themselves from liability for future negligence. Id. Examining the exculpatory agreement at issue in Hyson, we observed that “the release signed by the plaintiff [did] not specifically refer to possible negligence by the defendant” but, instead, only referred to “inherent and other risks involved in [snowtubing] . . . .”4 (Internal quotation marks omitted.) Id., 640. Thus, “[a] person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing.” Id., 643. Accordingly, we concluded that the exculpatory agreement did not *321expressly release the defendants from liability for future negligence and, therefore, did not bar the plaintiffs claims. Consequently, we declined to decide whether a well drafted exculpatory agreement expressly releasing a defendant from prospective liability for future negligence could be enforced consistent with public policy. See id., 640 (“we do not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable”); id., 643 n.ll (“we do not decide today whether a contract having such express language would be enforceable to release a party from liability for its negligence”).

As an initial matter, we set forth the appropriate standard of review. “[T]he standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summaiy judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005).

I

We first address the plaintiffs claim that the agreement does not expressly release the defendants from liability for personal injuries incurred as a result of their own negligence as required by Hyson. Specifically, the plaintiff maintains that an ordinary person of reasonable intelligence would not understand that, by signing the agreement, he or she was releasing the defendants from liability for future negligence. We disagree.

“]T]he law does not favor contract provisions which relieve a person from his own negligence . . . Hyson v. White Water Mountain Resorts of Connecticut, Inc., *322supra, 265 Conn. 643. “[T]he law’s reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts .... Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility ....

“Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon. ... Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . . .” (Internal quotation marks omitted.) B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 72, 807 A.2d 1001 (2002), quoting Gross v. Sweet, 49 N.Y.2d 102, 107-108, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979); see also Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643 (“a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides”). “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 559-60, 849 A.2d 368 (2004).

*323The agreement5 at issue in the present case provides in relevant part: “I understand that there are inherent risks involved in snowtubing, including the risk of seri*324ous physical injury or death and I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants] . . . including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like. . . . I . . . agree I will defend, indemnify and hold harmless [the defendants] . . . from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of [the defendants] . . . . I . . . hereby release, and agree that I will not sue [the defendants] . . . for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of [the defendants] . . . (Emphasis in original.)

We conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence. The agreement explicitly provides that the snowtuber “fully assume[s] all risks associated with [s]nowtubing, even if due to the NEGLIGENCE” of the defendants. (Emphasis in original.) Moreover, the agreement refers to the negligence of the defendants three times and uses capital letters to emphasize the term “negligence.” Accordingly, we conclude that an ordinary person of reasonable intelligence would understand that, by signing the *325agreement, he or she was releasing the defendants from liability for their future negligence.6

The plaintiff claims, however, that the agreement does not expressly release the defendants from liability for their prospective negligence because the agreement “define[s] the word ‘negligence’ solely by reference to inherent [risks] of the activity.” We disagree. The agreement states that the snowtuber “fully assume[s] all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]” and provides a nonexhaustive list of such risks. (Emphasis in original.) We acknowledge that some of the risks listed arguably can be characterized as inherent risks because they are innate to the activity, “are beyond the control of the *326[recreational] area operator and cannot be minimized by the operator’s exercise of reasonable care.” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, 849 A.2d 813 (2004). Other risks listed in the agreement, for example, “lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions” are not inherent risks. The recreational operator has control over safety devices, warnings and instructions, and can ensure their adequacy through the exercise of reasonable care. Thus, a snowtuber who, by virtue of signing the present agreement, assumes the risk of inadequate safety devices, warnings or instructions, necessarily assumes the risk of the recreational operator’s negligence.

We conclude that the trial court properly determined that the agreement in the present matter expressly purports to release the defendants from liability for their future negligence and, accordingly, satisfies the standard set forth by this court in Hyson.

II

We next address the issue we explicitly left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640, namely, whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy. We conclude that it does and, accordingly, reverse the judgment of the trial court.

Although it is well established “that parties are free to contract for whatever terms on which they may agree”; (internal quotation marks omitted) Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997); it is equally well established “that contracts that violate public policy are unenforceable.” Solomon v. Gilmore, 248 Conn. 769, *327774, 731 A.2d 280 (1999). “[T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review.” (Internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn. App. 235, 245, 866 A.2d 629 (2005), citing 17A Am. Jur. 2d 312, Contracts § 327 (2004).

As previously noted, “[t]he law does not favor contract provisions which relieve a person from his own negligence . . . .” (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643. This is because exculpatory provisions undermine the policy considerations governing our tort system. “[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct .... It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. . . . An equally compelling function of the tort system is the prophylactic factor of preventing future harm .... The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). Thus, it is consistent with public policy “to posit the risk of negligence upon the actor” and, if this policy is to be abandoned, “it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.” Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963).

*328Although this court previously has not addressed the enforceability of a release of liability for future negligence, the issue has been addressed by many of our sister states. A frequently cited standard for determining whether exculpatory agreements violate public policy was set forth by the Supreme Court of California in Tunkl v. Regents of the University of California, supra, 60 Cal. 2d 98-101. In Tunkl, the court concluded that exculpatory agreements violate public policy if they affect the public interest adversely; id., 96-98; and identified six factors (Tunkl factors) relevant to this determination: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” Id., 98-101. The court clarified that an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied.7 Id., 101.

*329Various states have adopted the Tunkl factors to determine whether exculpatory agreements affect the public interest adversely and, thus, violate public policy. See, e.g., Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa School District, 110 Wash. 2d 845, 851-52, 758 P.2d 968 (1988). Other states have developed their own variations of the Tunkl factors; see, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (“[i]n determining whether an exculpatory agreement is valid, there are four factors which a court must consider: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] whether the intention of the parties is expressed in clear and unambiguous language”); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) (“express agreements exempting one of the parties for negligence are to be sustained except where: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is involved [public utility companies, common carriers]”); while still others have adopted a totality of the circumstances approach. See, e.g., Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994) (expressly declining to adopt Tunkl factors because “[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations”); Dalury v. S-K-I, Ltd., 164 Vt. 329, 333-34, 670 A.2d 795 (1995) (same). The Virginia Supreme Court, however, has determined that all exculpatory agreements purporting to release tortfeasors *330from future liability for personal injuries are unenforceable because “[t]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it . . . .” (Internal quotation marks omitted.) Hiett v. Lake Barcroft Community Assn., 244 Va. 191, 194, 418 S.E.2d 894 (1992).

Having reviewed the various methods for determining whether exculpatory agreements violate public policy, we conclude, as the Tunkl court itself acknowledged, that “[n]o definition of the concept of public interest can be contained within the four comers of a formula.” Tunkl v. Regents of the University of California, supra, 60 Cal. 2d 98. Accordingly, we agree with the Supreme Courts of Maryland and Vermont that “[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” Wolf v. Ford, supra, 335 Md. 535; Dalury v. S-K-I, Ltd., supra, 164 Vt. 333-34. Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.

We now turn to the merits of the plaintiffs claim. The defendants are in the business of providing snowtubing services to the public generally, regardless of prior snowtubing experience, with the minimal restriction that only persons at least six years old or forty-four inches tall are eligible to participate. Given the virtually unrestricted access of the public to Powder Ridge, a reasonable person would presume that the defendants were offering a recreational activity that the whole family could enjoy safely. Indeed, this presumption is borne out by the plaintiffs own testimony. Specifically, the plaintiff testified that he “trusted that [the defendants] *331would, within their good conscience, operate a safe ride.”

The societal expectation that family oriented recreational activities will be reasonably safe is even more important where, as in the present matter, patrons are under the care and control of the recreational operator as a result of an economic transaction. The plaintiff, in exchange for a fee, was permitted access to the defendants’ snowtubing runs and was provided with snowtubing gear. As a result of this transaction, the plaintiff was under the care and control of the defendants and, thus, was subject to the risk of the defendants’ carelessness. Specifically, the defendants designed and maintained the snowtubing run and, therefore, controlled the steepness of the incline, the condition of the snow and the method of slowing down or stopping patrons. Further, the defendants provided the plaintiff with the requisite snowtubing supplies and, therefore, controlled the size and quality of the snow-tube as well as the provision of any necessary protective gear. Accordingly, the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an exciting, but reasonably safe, snowtubing experience.

Moreover, the plaintiff lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ snowtubing runs were maintained in a reasonably safe condition. As the Vermont Supreme Court observed, in the context of the sport of skiing, it is consistent with public policy “to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. [The] [defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their *332premises, and train their employees in risk management. They alone can insure against risks and effectively spread the costs of insurance among their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.

“If the defendants were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk would be removed, with the public bearing the cost of the resulting injuries. ... It is illogical, in these circumstances, to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.”8 (Citations omitted.) Dalury v. S-K-I, Ltd., supra, 164 Vt. 335. The concerns expressed by the court in Dalury are equally applicable to the context of snowtubing, and we agree that it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control.9

*333Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a “take it or leave it” basis. The “most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988); see also Black’s Law Dictionary (7th Ed. 1999) (defining adhesion contract as “[a] standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms”). Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him the option of procuring protection against negligence at an additional reasonable cost. See Restatement (Third), Torts, Apportionment of Liability § 2, comment (e), p. 21 (2000) (factor relevant to enforcement of contractual limit on liability is “whether the party seeking exculpation was willing to provide greater protection against *334tortious conduct for a reasonable, additional fee”). Moreover, the defendants did not inform prospective snowtubers prior to their arrival at Powder Ridge that they would have to waive important common-law rights as a condition of participation. Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants’ proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge. Under the present factual circumstances, it would ignore reality to conclude that, the plaintiff wielded the same bargaining power as the defendants.

The defendants contend, nevertheless, that they did not have superior bargaining power because, unlike an essential public service, “[s]nowtubing is a voluntary activity and the plaintiff could have just as easily decided not to participate.”10 We acknowledge that snowtubing is a voluntary activity, but we do not agree that there can never be a disparity of bargaining power in the context of voluntary or elective activities.11 See *335Dalury v. S-K-I, Ltd., supra, 164 Vt. 335 (“[w]hile interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that implicate public concerns”). Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga, are pursued by the vast majority of the population and constitute an important and healthy part of everyday life. Indeed, this court has previously recognized the public policy interest of promoting vigorous participation in such activities. See, e.g., Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 702 (important public policy interest in encouraging vigorous participation in skiing); Jaworski v. Kiernan, 241 Conn. 399, 409, 696 A.2d 332 (1997) (important public policy interest in promoting vigorous participation in soccer). In the present case, the defendants held themselves out as a provider of a healthy, fun, family activity. After the plaintiff and his family arrived at Powder Ridge eager to participate in the activity, however, the defendants informed the plaintiff that, not only would they be immune from claims arising from the inherent risks of the activity, but they would not be responsible for injuries resulting from their own carelessness and negligence in the operation of the snowtubing facility. We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances.

For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because *336it violates public policy.12 Accordingly, the trial court improperly rendered summary judgment in favor of the defendants.

The defendants and the dissent point out that our conclusion represents the “distinct minority view” and is inconsistent with the majority of sister state authority upholding exculpatory agreements in similar recreational settings. We acknowledge that most states uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct. Put simply, we disagree with these decisions for the reasons already explained in this opinion. Moreover, we find it significant that many states uphold exculpatory agreements in the context of simple negligence, but refuse to enforce such agreements in the context of gross negligence. See, e.g., Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235-36 (9th Cir. 1995) (Oregon law); Wheelock v. Sport Kites, Inc., 839 F. Sup. 730, 736 (D. Haw. 1993), superseded in part by Haw. Rev. Stat. § 663-1.54 (1997) (recreational providers liable for simple negligence in addition to gross negligence); McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 758, 603 S.E.2d 7 (2004), cert. denied, 2005 Ga. LEXIS 69 (January 10, 2005); Boucher v. Riner, 68 Md. App. 539, 543, 514 A.2d 485 (1986); Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 *337Mass. App. 17, 18-19, 687 N.E.2d 1263 (1997); Schmidt v. United States, 912 P.2d 871, 874 (Okla. 1996); Adams v. Roark, 686 S.W.2d 73, 75-76 (Tenn. 1985); Conradt v. Four Star Promotions, Inc., 45 Wash. App. 847, 852, 728 P.2d 617 (1986); see also New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 62-65, 525 N.W.2d 25 (1994); 8 S. Williston, Contracts (4th Ed. 1998) § 19:23, pp. 291-97 (“[a]n attempted exemption from liability for a future intentional tort or crime or for a future willful or grossly negligent act is generally held void, although a release exculpating a party from liability for negligence may also cover gross negligence where the jurisdiction has abolished the distinction between degrees of negligence and treats all negligence alike”). Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 833 and n. 10, 836 A.2d 394 (2003). Accordingly, although in some states recreational operators cannot, consistent with public policy, release themselves from prospective liability for conduct that is more egregious than simple negligence, in this state, were we to adopt the position advocated by the defendants, recreational operators would be able to release their liability for such conduct unless it rose to the level of recklessness. Id., 832 (recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent” [internal quotation marks omitted]). As a result, recreational operators would lack the incentive to exercise even slight care, with the public bearing the costs of the resulting injuries. See 57A Am. Jur. 2d 296, Negligence § 227 (2004) *338(“ ‘gross negligence’ is commonly defined as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or ‘slight diligence’ ”). Such a result would be inconsistent with the public policy of this state.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.

NORCOTT, J.,

with whom BORDEN and PALMER, Js., join, dissenting. Although I concur in part I of the majority opinion, I disagree with its conclusion in part II, namely, that the prospective release of liability for negligence executed by the plaintiff, Gregory D. Hanks, in this case is unenforceable as against public policy. I would follow the overwhelming majority of our sister states and would conclude that prospective releases from liability for negligence are permissible in the context of recreational activities. Accordingly, I respectfully dissent from the majority’s decision to take a road that is, for many persuasive reasons, far less traveled.

I begin by noting that “[i]t is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract . . . .” Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993). Nevertheless, contracts that violate public policy are unenforceable. See, e.g., Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999).

*339In determining whether prospective releases of liability violate public policy, the majority adopts the Vermont Supreme Court’s totality of the circumstances approach.1 See Dalury v. S-K-I, Ltd., 164 Vt. 329, 334, 670 A.2d 795 (1995). Although it also purports to consider the widely accepted test articulated by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (1963), the majority actually accords the test only nominal consideration. Because I consider the Tunkl factors to be dispositive, I address them at length.

“[T]he attempted but invalid [release agreement] involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and *340makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” Id., 98-101.

“[N]ot all of the Tunkl factors need be satisfied in order for an exculpatory clause to be deemed to affect the public interest. The [Tunkl court] conceded that ‘[n]o definition of the concept of public interest can be contained within the four comers of a formula’ and stated that the transaction must only ‘exhibit some or all’ of the identified characteristics. . . . Thus, the ultimate test is whether the exculpatory clause affects the public interest, not whether all of the characteristics that help reach that conclusion are satisfied.” (Citations omitted.) Health Net of California, Inc. v. Dept. of Health Services, 113 Cal. App. 4th 224, 237-38, 6 Cal. Rptr. 3d 235 (2003), review denied, 2004 Cal. LEXIS 2043 (March 3, 2004).

Notwithstanding the statutory origins of the Tunkl factors,2 numerous other states have adopted them to determine whether a prospective release violates public policy under their common law. See, e.g., Morgan v. *341South Central Bell Telephone Co., 466 So. 2d 107, 117 (Ala. 1985); Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); La Frenz v. Lake County Fair Board, 172 Ind. App. 389, 395, 360 N.E.2d 605 (1977); Lynch v. Santa Fe National Bank, 97 N.M. 554, 558-59, 627 P.2d 1247 (1981); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa School District, 110 Wash. 2d 845, 852, 758 P.2d 968 (1988); Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986).3

Applying the six Tunkl factors to the sport of snow-tubing, I note that the first, second, fourth and sixth factors support the defendants, Powder Ridge Restaurant Corporation and White Water Mountain Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, which operate the Powder Ridge facility, while the third and fifth factors support the plaintiff. Accordingly, I now turn to a detailed examination of each factor as it applies to this case.

The first of the Tunkl factors, that the business is of a type thought suitable for regulation, cuts squarely in favor of upholding the release. Snowtubing runs generally are not subject to extensive public regulation. Indeed, the plaintiff points to no statutes or regulations that affect snowtubing, and I have located only one statutory reference to it. This sole reference, contained in No. 05-78, § 2, of the 2005 Public Acts, explicitly *342exempts snowtubing from the scope of General Statutes (Rev. to 2005) § 29-212, which applies to liability for injuries sustained by skiers.4 Thus, while the legislature has chosen to regulate, to some extent, the sport of skiing, it conspicuously has left snowtubing untouched.

The second Tunkl factor also works in the defendants’ favor. Snowtubing is not an important public service. Courts employing the Tunkl factors have found *343this second element satisfied in the contexts of hospital admission and treatment, residential rental agreements, banking, child care services, telecommunications and public education, including interscholastic sports. See Henrioulle v. Marin Ventures, Inc., 20 Cal. 3d 512, 573 P.2d 465, 143 Cal. Rptr. 247 (1978) (residential rental agreements); Tunkl v. Regents of the University of California, supra, 60 Cal. 2d 92 (hospitals); Gavin W. v. YMCA of Metropolitan Los Angeles, 106 Cal. App. 4th 662, 131 Cal. Rptr. 2d 168 (2003) (child care); Vilner v. Crocker National Bank, 89 Cal. App. 3d 732, 152 Cal. Rptr. 850 (1979) (banking); Morgan v. South Central Bell Telephone Co., supra, 466 So. 2d 107 (telephone companies); Anchorage v. Locker, supra, 723 P.2d 1261 (telephone companies); Wagenblast v. Odessa School District, supra, 110 Wash. 2d 845 (public schools and interscholastic sports). The public nature of these industries is undeniable and each plays an important and indispensable role in everyday life. Snowtubing, by contrast, is purely a recreational activity.

The fourth Tunkl factor also counsels against the plaintiffs position that snowtubing affects the public interest because snowtubing is not an essential activity. The plaintiffs only incentive for snowtubing was recreation, not some other important personal interest such as, for example, health care, banking or insurance. The plaintiff would not have suffered any harm by opting not to snowtube at Powder Ridge, because snowtubing is not so significant a service that a person in his position would feel compelled to agree to any terms offered rather than forsake the opportunity to participate. Furthermore, “[ujnlike other activities that require the provision of a certain facility, snowtubing occurs regularly at locations all across the state, including parks, backyards and golf courses.” Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 650 n.4, 829 A.2d 827 (2003) (Norcott, J., dissenting). Thus, *344the plaintiff had ample opportunity to snowtube in an environment of his choosing, which he could have selected based on whatever safety considerations he felt were relevant. In the absence of a compelling personal need and a limited choice of facilities, I cannot conclude that the defendants enjoyed a significant bargaining advantage over the plaintiff.

Finally, the sixth Tunkl factor weighs against a determination that the release implicates the public interest. The plaintiff did not place his person or property under the defendants’ control. Unlike the patient who lies unconscious on the operating table or the child who is placed in the custody of a day care service, the Powder Ridge patron snowtubes on his own, without entrusting his person or property to the defendants’ care. In fact, the attraction of snowtubing and other recreational activities often is the lack of control associated with participating.

In contrast, the third and fifth Tunkl factors support the plaintiffs position. With respect to the third factor, although the defendants restricted access to the snow-tubing run to persons at least six years old or forty-four inches tall, this minimal restriction does not diminish the fact that only a small class of the general public is excluded from participation. See Tunkl v. Regents of the University of California, supra, 60 Cal. 2d 102 (research hospital that only accepted certain patients nevertheless met third prong of Tunkl because it accepted anyone who exhibited medical condition that was being researched at hospital). Such a small exclusion does not diminish the invitation to the public at large to partake in snowtubing at the defendants’ facility, because the snowtubing run is open to any person who fits within certain easily satisfied parameters. See id., 99-101.

Finally, I examine the fifth Tunkl factor, namely, whether the release agreement is an “adhesion contract *345. . . .” Id., 100. “[The] most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988). Although the plaintiff made no attempt to bargain as to the terms of the release, it defies logic to presume that he could have done so successfully. As the majority correctly notes, the defendants presented patrons with a “take it or leave it” situation, conditioning access to the snowtubing run on signing the release agreement. Accordingly, the fifth Tunkl factor indicates that the agreement does affect the public interest.

In sum, I conclude that, under the Tunkl factors, the defendants’ release at issue in this case does not violate public policy with respect to the sport of snowtubing. This conclusion is consistent with the vast majority of sister state authority, which upholds releases of liability in a variety of recreational or athletic settings that are akin to snowtubing as not violative of public policy. See, e.g., Barnes v. Birmingham International Raceway, Inc., 551 So. 2d 929, 933 (Ala. 1989) (automobile racing); Valley National Bank v. National Assn. for Stock Car Auto Racing, 153 Ariz. 374, 378, 736 P.2d 1186 (App. 1987) (spectator in pit area at automobile race); Plant v. Wilbur, 345 Ark. 487, 494-96, 47 S.W.3d 889 (2001) (same); Madison v. Superior Court, 203 Cal. App. 3d 589, 602, 250 Cal. Rptr. 299 (1988) (scuba diving), review denied, 1988 Cal. LEXIS 1511 (October 13, 1988); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) (horseback riding); Theis v. J & J Racing Promotions, 571 So. 2d 92, 94 (Fla. App. 1990) (automobile racing), review denied, 581 So. 2d 168 (Fla. 1991); Bien v. Fox Meadow Farms Ltd., 215 Ill. App. 3d 337, 341, 574 N.E.2d 1311 (horseback riding), appeal denied, 142 Ill. 2d 651, 584 N.E.2d 126 (1991); Clanton v. United Skates of America, 686 N.E.2d 896, 899-900 *346(Ind. App. 1997) (roller skating); Boucher v. Riner, 68 Md. App. 539, 551, 514 A.2d 485 (1986) (skydiving); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965) (spectator at automobile race); Lloyd v. Sugarloaf Mountain Corp., 833 A.2d 1, 4 (Me. 2003) (mountain biking); Gara v. Woodbridge Tavern, 224 Mich. App. 63, 66-68, 568 N.W.2d 138 (1997) (recreational sumo wrestling); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982) (weightlifting at fitness center); Mayer v. Howard, 220 Neb. 328, 336, 370 N.W.2d 93 (1985) (motorcycle racing); Barnes v. New Hampshire Karting Assn., Inc., 128 N.H. 102, 108, 509 A.2d 151 (1986) (go-cart racing); Kondrad v. Bismarck Park District, 655 N.W.2d 411, 414 (N.D. 2003) (bicycling); Cain v. Cleveland Parachute Training Center, 9 Ohio App. 3d 27, 28, 457 N.E.2d 1185 (1983) (skydiving); Manning v. Brannon, 956 P.2d 156, 159 (Okla. App. 1997) (skydiving); Mann v. Wetter, 100 Or. App. 184, 187-88, 785 P.2d 1064 (1990) (scuba diving); Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 448, 603 A.2d 663 (1992) (ski racing); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 631, 281 S.E.2d 223 (1981) (automobile racing); Holzer v. Dakota Speedway, Inc., 610 N.W.2d 787, 798 (S.D. 2000) (automobile racing); Kellar v. Lloyd, 180 Wis. 2d 162, 183, 509 N.W.2d 87 (App. 1993) (flagperson at automobile race); Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988) (ski race during decathlon).5

This near unanimity among the courts of the various states reflects the fact that “[m]ost, if not all, recreational activities are voluntary acts. Individuals participate in them for a variety of reasons, including to exercise, to experience a rush of adrenaline, and to *347engage their competitive nature. These activities, while surely increasing one’s enjoyment of life, cannot be considered so essential as to override the ability of two parties to contract about the allocation of the risks involved in the provision of such activity. When deciding to engage in a recreational activity, participants have the ability to weigh their desire to participate against their willingness to sign a contract containing an exculpatory clause.” Hyson v. While Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 649 (Norcott, J., dissenting). It also is consistent with the view of the American Law Institute, as embodied in 2 Restatement (Second) of Contracts § 195 (1981),6 and Restatement (Third) of Torts, Apportionment of Liability § 2 (2000).7

*348Notwithstanding the foregoing authority, the majority adopts the Vermont Supreme Court’s holding in Dalury v. S-K-I, Ltd., supra, 164 Vt. 334, and concludes that the release agreement in the present case violates public policy. In Dalury, the plaintiff “sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski lift line. Before the season started, [the plaintiff] had purchased a midweek season pass and signed a form releasing the ski area from liability.” Id., 330. The release signed by the plaintiff in Dalury clearly disclaimed liability for negligence. Id. Citing the Tunkl factors, but fashioning an alternative test based on the totality of the circumstances, the Dalury court held the release invalid as against public policy. Id., 333-35. The Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation. Id., 334.1 find the Vermont court’s opinion unpersuasive.

Although the number of tickets sold to the public is instructive in determining whether an agreement affects the public interest, it is by no means dispositive. Private, nonessential industries, while often very popular, wield no indomitable influence over the public. The average person is capable of reading a release agreement and deciding not to snowtube because of the risks that he or she is asked to assume.8 By contrast, in those fields *349implicating the public interest, the patron is at a substantial bargaining disadvantage. Few people are in a position to quibble over contractual obligations when seeking, for example, insurance, medical treatment or child care. A general characteristic of fields entangled with the public interest is their indispensability; snow-tubing hardly is indispensable. Under the majority’s reasoning, nearly any release affects the public interest, no matter how unnecessary or inherently dangerous the underlying activity may be.9 That position remains the distinct minority view, followed only by the courts of Vermont and Virginia.10 See Hiett v. Lake Barcroft Community Assn., 244 Va. 191, 194, 418 S.E.2d 894 (1992) (“[t]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails”).

*350The majority also contends that, because of the status of Connecticut negligence law, my conclusion would have broader public policy implications than the decisions of other courts upholding releases. Specifically, the majority contends that because the law of Connecticut does not recognize differing degrees of negligence, my position allows snowtube operators to insulate themselves from liability even for grossly negligent acts. This is a contrast from states that do recognize a separate claim for gross negligence. Thus, the majority avers, in this state, it would be possible to insulate oneself from liability for all acts not rising to the level of recklessness, whereas elsewhere only simple negligence may be disclaimed.

Although the majority’s theory initially appears compelling, closer examination reveals that the line it draws is a distinction without a difference because many states that prohibit prospective releases of liability for gross negligence define gross negligence in a way that mirrors Connecticut recklessness law.11 See Mich. Comp. Laws § 691.1407 (7) (a) (2005) (governmental immunity statute defining gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results”); see also Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997) (“[WJanton misconduct is aggravated negligence. . . . *351[W]illful, wanton, and reckless conduct have commonly been grouped together as an aggravated form of negligence.” [Citations omitted; internal quotation marks omitted.]); Cullison v. Peoria, 120 Ariz. 165, 169, 584 P.2d 1156 (1978) (“[W]anton [or gross] negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is in the air, so to speak. It is flagrant and evinces a lawless and destructive spirit.” [Internal quotation marks omitted.]); Ziarko v. Soo Line R. Co., 161 Ill. 2d 267, 274-75, 641 N.E.2d 402 (1994) (“[U]nlilce intentionally tortious behavior, conduct characterized as willful and wanton may be proven where the acts have been less than intentional—i.e., where there has been a failure, after knowledge of impending danger, to exercise ordinary care to prevent the danger, or a failure to discover the danger through . . . carelessness when it could have been discovered by the exercise of ordinary care. . . . Our case law has sometimes used interchangeably the terms willful and wanton negligence, gross negligence, and willful and wanton conduct. . . . This court has previously observed that there is a thin line between simple negligence and willful and wanton acts . . . .” [Citations omitted; internal quotation marks omitted.]); Murphy v. Edmonds, 325 Md. 342, 375, 601 A.2d 102 (1992) (“gross negligence . . . has been defined in motor vehicle tort cases as a wanton or reckless disregard for human life in the operation of a motor vehicle” [internal quotation marks omitted]); Stringer v. Minnesota Vikings Football Club, 686 N.W.2d 545, 552-53 (Minn. App. 2004) (“Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the *352want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others.” [Internal quotation marks omitted.]), review granted, 2004 Minn. LEXIS 752 (November 23, 2004), quoting State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480 (1946); State v. Chambers, 589 N.W.2d 466, 478-79 (Minn. 1999) (person is grossly negligent when he acts “without even scant care but not with such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong” [internal quotation marks omitted]), quoting State v. Bolsinger, supra, 159; Bennett v. Labenz, 265 Neb. 750, 755, 659 N.W.2d 339 (2003) (“[g]ross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty”); New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 64, 525 N.W.2d 25 (1994) (relying on New York law characterizing gross negligence as “conduct that evinces a reckless indifference to the rights of others”); Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992) (“Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, must smack of intentional wrongdoing. ... It is conduct that evinces a reckless indifference to the rights of others.” [Citations omitted; internal quotation marks omitted.]); Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D. 1996) (“[Where] [g]ross negligence is defined [by statute] as the want of slight care and diligence. . . . This court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically willful in its nature.” [Citation omitted; internal quotation marks omitted.]); *353Harsh v. Lorain County Speedway, Inc., 111 Ohio App. 3d 113, 118-19, 675 N.E.2d 885 (1996) (upholding release for negligence but not “willful and wanton conduct”);12 Bogue v. McKibben, 278 Or. 483, 486, 564 P.2d 1031 (1977) (“ [g]ross negligence refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others” [internal quotation marks omitted]); Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159 (1997) (Pennsylvania Supreme Court approved a trial court’s characterization of gross negligence for purposes of governmental immunity statute as “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”); Jinks v. Richland County, 355 S.C. 341, 345, 585 S.E.2d 281 (2003) (For the purposes of a governmental immunity statute, gross negligence is defined as “the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. . . . It is the failure to exercise slight care. . . . Gross negligence has also been defined as a relative term and means the absence of care that is necessaiy under the circumstances.” [Citations omitted.]).13

*354Furthermore, at least one other court has concluded that releases similar to the one in question are valid notwithstanding the absence of a gross negligence doctrine. New Hampshire, like Connecticut, does not recognize differing degrees of negligence, yet its highest court has upheld a release of liability for negligence, stating: “The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. . . . The plaintiff advances no reasons for abandoning this rule and we decline to create an exception to allow him to pursue his claims of gross negligence.” (Citation omitted.) Barnes v. New Hampshire Karting Assn., Inc., supra, 128 N.H. 108-109; but see Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 705 n.3 (Pa. Super. 2000) (declining to reach issue of whether agreement that released liability for gross negligence would violate public policy where agreement in question stated only “negligence”); Bielski v. Schulze, 16 Wis. 2d 1, 18-19, 114 N.W.2d 105 (1962) (recognizing potential problems that Wisconsin’s abolition of gross negligence might raise in area of exculpatory clauses).

*355The great weight of these numerous and highly persuasive authorities compels my conclusion that the release at issue herein does not violate public policy as it pertains to the sport of snowtubing. Accordingly, I conclude that the trial court properly granted summary judgment in the defendants’ favor and I would affirm that judgment. I, therefore, respectfully dissent.

Rogosheske, Justice.

Defendants appeal from a judgment of the district court decreeing specific performance of a contract for the sale of real estate.

The judgment was entered upon findings made after trial that “subsequent to the Defendant acquiring” the property in question they “did offer to sell the property to the Plaintiff for the sum of Two Hundred Sixty-two ($262.00) Dollars, which offer the Plaintiff did accept”; and that “at all times relevant, the Plaintiff has been ready, willing and able to complete the agreement for the sale of Defendants’ property but the Defendants have refused to do so.” The court concluded that defendants “have wrongfully and improperly failed and refused” to deliver a deed of the property to plaintiff.

Resolving the conflicts in the evidence in plaintiff’s favor, as we must, these appear to be the facts. Plaintiff and defendants are neigh*36bors owning adjoining lots in Wakefield Park addition in Ramsey County. At the times each acquired ownership, their lots and eight neighboring lots did not extend to the west shoreline of Wakefield Lake, located nearby. The strip of land between the shoreline of the lake and the east boundary of the platted lots was owned by Dr. Gulden, the developer of the addition, and his brother. They had been hopeful of selling the entire strip to the county for use as a park, but when the county finally declined the offer in 1956, Dr. Gulden attempted to sell to the several owners separated from the lake. These attempts were unsuccessful until December 1, 1959, when defendants acquired ownership of the entire strip'. Preston Brenon, hereinafter referred to as defendant, was a licensed real estate agent. Following his purchase, he had the property surveyed, and on June 28, 1960, he sent an identical letter to plaintiff and the eight other neighbors offering to sell them the irregular parcels that separated their lots from the lake. In the letter he explained that since he was interested only in that part of the strip adjoining his property, he had no desire to retain the remainder. He stated he had “no desire to make any profit on this transaction if everyone owning adjoining property is willing to buy their portion” and divide the cost “equally among all 10 including [himjself.” He itemized the total cost at $2,120 and offered to sell each lot for $212 on any terms agreeable. This letter was not signed by defendant but his name was typewritten thereon, he having authorized this and considered such to be tantamount to his signature. Previous to the receipt of this letter, plaintiff and defendant had discussed the latter’s intent of acquiring the property for the neighborhood on at least two occasions. About 2 weeks after plaintiff received this offer, he orally accepted it. Sometime later, plaintiff learned from a neighbor that two neighbors declined to purchase, and thus the divided cost of each lot was increased to $262. Although he was agreeable to pay the increase, he did not immediately so inform defendant. Despite defendant’s progress in completing sales to other interested neighbors, plaintiff, for reasons not explained except that he believed he was waiting for defendant to furnish him a copy of the survey and an abstract, delayed making a request for the abstract until *37May 7, 1961. On cross-examination, he admitted that the survey was received by him with the June 28 letter. In any event, it is clear that plaintiff accepted defendant’s offer on May 7, at which time plaintiff knew of the price increase. Defendant testified:

“Q. * * * And did he agree to buy that time?

“A. At that time he did.”

Later in May, defendant delivered to plaintiff a stub abstract covering entries from July 2, 1947, to May 9, 1961. At that time plaintiff offered “some money” but was told by defendant to “wait till it’s all settled.” There was a further delay before a title opinion could be given, made necessary when plaintiffs attorney insisted on procuring a complete abstract. On August 14, plaintiff delivered to his attorney a check for $262 payable to defendants for the purpose of completing the sale. On August 16, plaintiff’s attorney wrote defendant informing him that he held the check for payment of the sale price to be delivered on receipt of a deed. Sometime after August 16, plaintiff received a letter from defendant dated August 16 informing him that the offer to sell was revoked.

From the time plaintiff bought his home in 1953, he occupied the parcel of land in dispute with consent of the owners. During the period it was owned by the Guldens, he cleaned, filled, graded, and planted grass upon it. However, after defendant purchased it, he did no more than continue to maintain the grass, fill in some “low spots that kind of wash away,” and plant “a few trees.”

The question is whether these facts establish a valid and enforceable contract for the sale of land. Defendants contend they do not.

As admitted by defendant, an oral contract to sell the land was made, and the trial court was clearly justified in so finding. There being no formal, integrated, written contract, however, the problem is whether the oral contract is unenforceable because it comes within Minn. St. 513.051 of the statute of frauds. Briefly, that pro*38vision decrees void any contract for the sale of lands unless the contract or some memorandum of the contract is in writing. The precise issue in this case is whether, under the circumstances, the letter written by defendant offering the land to plaintiff is a memorandum sufficient to satisfy the requirements of the statute.

The statute expresses a public policy of preventing the enforcement by means of fraud and perjury of contracts that were never in fact made. To inhibit perversion of this policy by those who would deny an oral contract actually made, the statute itself permits enforcement of an oral contract if there exists a note or memorandum as evidence of the contract. To the courts, then, is left promotion of the policy of the statute, either by denying enforcement urged by defrauders or by granting enforcement against wrongful repudiators. As an aid in this objective, the statute itself lists some requisites of a memorandum and this court has added others, so that we have some indication of what content a memorandum normally must have in order to be sufficient evidence of the contract.

The statute requires that the writing express the consideration and that it be subscribed by the party by whom the sale is to be made or by his lawful agent authorized in writing. This court has stated that the memorandum is sufficient when, in addition to the above requirements, it states expressly or by necessary implication the parties to the contract, the lands involved, and the general terms and conditions upon which the sale will be made.2

These latter elements are clearly present in the letter written by defendant. Plaintiff’s name is included in the inside address heading the letter, and Brenon’s name is typewritten at the bottom. The land to be sold is positively delineated. The letter offers “their portion” to “everyone owning adjoining property,” and the survey map accom-*39partying the letter depicts each tract. Considering the conversation both before and after the letter was sent, it is inconceivable that the parties could be uncertain concerning the land to be sold. As to other terms of the contract, such as manner of payment, Brenon merely held himself ready “to work out any kind of terms” with the purchasers.

The elements expressly required by statute are not so obvious. First, the consideration of $212 stated in the letter is not the same as the $262 tendered in accord with the oral understanding. Despite this discrepancy, we think that the letter sufficiently expresses the consideration because the $212 represented an equal share of the cost divided by all ten interested parties. As Brenon said in the letter, “I feel the only fair way to share the cost is to divide equally among all 10 including myself.” There is no dispute that the price was changed from that stated in the letter when two property owners declined to buy. The consideration then was simply a mathematical computation according to the formula specified in the letter.3 We do not believe this variation in the dollar amount renders the letter’s expression of the consideration insufficient, especially since plaintiff paid more under the admitted agreement than he would have paid according to the letter.

The necessity of a subscription presents the final problem. A “subscription” is the same as a “signing,”4 and it is clear that Brenon’s typewritten name, which according to his testimony was typed with the intent that it be tantamount to a written signature, is a sufficient subscription.5 A problem here is that his wife, who owned the property *40with him in joint tenancy, apparently neither signed the letter nor authorized him in writing to sell her share. But this deficiency was at no time claimed or asserted before the trial court or in defendants’ brief to this court. It was suggested for the first time upon oral argument. If it is a fact, it was not a part of the theory upon which the case was tried and submitted. We must therefore adhere to our well-settled rule that an unlitigated issue may not be asserted for the first time on appeal.6

We by no means intend to hold that Brenon’s letter would be a sufficient memorandum in every case. We will overlook technical requirements only if proof of the oral contract is clear and uncontradicted as in this case where defendant admitted that a contract had been made. But those technical requirements are only aids to discern where the truth lies in a given case, and we will not blindly apply those technicalities if they lead to a conclusion repugnant to commonsense. As Professor Williston has said:

“In brief, the Statute ‘was intended to guard against the perils of perjury and error in the spoken word.’ Therefore, if after a consideration of the surrounding circumstances, the pertinent facts and all the evidence in a particular case, the court concludes that enforcement of the agreement will not subject the defendant to fraudulent claims, the purpose of the Statute will best be served by holding the note or memorandum sufficient even though it be ambiguous or incomplete.”7

Most persuasive is defendant’s admission during trial that a contract was in fact made between plaintiff and himself. Although we have followed the majority rule that admission of the contract does not preclude assertion of the statute of frauds,8 an admission that a con*41tract was made certainly cannot be ignored when all other evidence submitted supports the same conclusion. Even though it may be argued that the formal requirements contemplated by the statute are lacking, when all the evidence is taken into account we are of the opinion that the letter should be held a sufficient memorandum in this case.9 The policy of the statute of frauds would be perverted if the admitted contract were not enforced. The judgment of the trial court is therefore affirmed.

Affirmed.

OPINION OF THE COURT BY

LEVINSON, J.

This case involves an oral employment contract which allegedly violates the provision of the Statute of Frauds requiring “any agreement that is not to be performed within one year from the making thereof” to be in writing in order to be enforceable. HRS § 656-1 (5). In this action the plaintiff-employee Dick McIntosh seeks to recover damages from his employer, George Murphy and Murphy Motors, Ltd., for the breach of an alleged one-year oral employment contract.

While the facts are in sharp conflict, it appears that defendant George Murphy was in southern California during March, 1964 interviewing prospective management personnel for his Chevrolet-Oldsmobile dealerships in Hawaii. He interviewed the plaintiff twice during that time. *30The position of sales manager for one of the dealerships was fully discussed but no contract was entered into. In April, 1964 the plaintiff received a call from the general manager of Murphy Motors informing him of possible employment within thirty days if he was still available. The plaintiff indicated his continued interest and informed the manager that he would be available. Later in April, the plaintiff sent Murphy a telegram to the effect that he would arrive in Honolulu .on Sunday, April 26, 1964. Murphy then telephoned McIntosh on Saturday, April 25, 1964 to notify him that the job of assistant salés manager was open and work would begin on the following Monday, April 27, 1964. At that time McIntosh expressed surprise at the change in job title from sales manager to. assistant sales manager but reconfirmed the fáct that he was arriving in Honolulu the next day, Sunday. McIntosh arrived on Sunday, April 26,1964 and began work oh the following day, Monday, April 27, 1964.

As a consequence of his decision to work for Miirphy, McIntosh moved some of his belongings from the mainland to Hawaii, sold other possessions, leased ah apartment in Honolulu and obviously forwent any other employment opportunities. In short, the plaintiff did all those things which were incidental to changing one’s residence perma: nently. from. Los Angeles to Honolulu, a distance of approximately 2200 miles. McIntosh continued working for Murphy until July 16, 1964, approximately two and one-half months, at which time he was discharged on the grounds that he was unable to close deals with prospective customers and could not train the salesmen.

At the conclusion of the trial, the defense moved for a directed verdict arguing that the oral employment agreement was in violation of the Statute of Frauds, there being no written memorandum or note thereof. The trial court ruled that as a matter of law the contract did not come *31within the Statute, reasoning that Murphy bargained for acceptance by the actual commencement of performance by McIntosh, so that McIntosh was not bound by a contract until he came to work on Monday, April 27, 1964. Therefore, assuming that the contract was for a year’s employment, it was performablé within a year exactly to the day and no writing was required for it to be enforceable. Alternatively, the court ruled that if the agreement was made final by the telephone call between the parties on Saturday, April 25, 1964, then that part of the weekend 'which remained would not be counted in cal: culating the year, thus taking the contract out of the Statute of Frauds. With commendable candor the trial judge gave as the motivating force for the decision his desire to avoid a mechanical and unjust application of the Statute.1

The case went to the jury on the following questions: (1) whether the contract was for a year’s duration or was performable on a trial basis, thus making it terminable at the will of either party; (2) whether the plaintiff was discharged for just cause; and (3) if he was not discharged for just cause, what damages were due the plaintiff. The jury returned a verdict for the plaintiff in the sum of |12,103.40. The defendants appeal to this court on four principal grounds, three of which we find to be without merit. The remaining ground of appeal is whether the plaintiff can maintain an action on the alleged oral employment contract in light of the prohibition of the Statute of Frauds making unenforceable an oral contract that is not to be performed within one year.

*32L. TIME OF ACCEPTANCE OF THE EMPLOYMENT AGREEMENT

The defendants contend that the trial court erred in refusing to give an instruction to the jury that if the employment agreement was made more than one day before the plaintiff began performance, there could be no recovery by the plaintiff. The reason given was that a contract not to be performed within one year from its making is unenforceable if not in writing.

The defendants are correct in their argument that the time of acceptance of an offer is a question of fact for the jury to decide. But the trial court alternatively decided that even if the offer was accepted on the Saturday prior to the commencement of performance, the intervening Sunday and part of Saturday would not be counted in computing the year for the purposes of the Statute of Frauds. The judge stated that Sunday was a non-working day and only a fraction of Saturday was left which he would not count. In any event, there is no need to discuss the relative merits of either ruling since we base our decision in this case on the doctrine of equitable estoppel which was properly briefed and argued by both parties before this court, although not presented to the trial court.

II. ENFORCEMENT BY VIRTUE OF ACTION IN RELIANCE ON THE ORAL CONTRACT

In determining whether a rule of law can be fashioned and applied to a situation where an oral contract admittedly violates a strict interpretation of the Statute of Frauds, it is necessary to review the Statute itself together with its historical and modern functions. The Statute of Frauds, which requires that certain contracts be in writing in order to be legally enforceable, had its inception in the days of Charles II of England. Hawaii’s *33version of the Statute is found in HRS § 656-1 and is substantially the same as the original English Statute of Frauds.

The first English Statute was enacted almost 300 years ago to prevent “many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury”. 29 Car. 2, c. 3 (1677) . Certainly, there were compelling reasons in those days for such a law. At the time of enactment in England, the jury system was quite unreliable, rules of evidence were few, and the complaining party was disqualified as a witness so he could neither testify on direct-examination nor, more importantly, be cross-examined. Summers, The Doctrine of Estoppel and the Statute of Frauds, 79 U. Pa. L. Rev. 440, 441 (1931). The aforementioned structural and evidentiary limitations on our system of justice no longer exist.

Retention of the Statute today has nevertheless been justified on at least three grounds: (1) the Statute still serves an evidentiary function thereby lessening the danger of perjured testimony (the original rationale); (2) the requirement of a writing has a cautionary effect which causes reflection by the parties on the importance of the agreement; and (3) the writing is an easy way to distinguish enforceable contracts from those which are not, thus channelling certain transactions into written form.2

In spite of whatever utility the Statute of Frauds may still have, its applicability has been drastically limited by judicial construction over the years in order to mitigate the harshness of a mechanical application.3 Furthermore, *34learned writers continue to disparage the Statute regarding it as “a statute for promoting fraud” and a “legal anachronism”.4

. Another method of judicial circumvention of the Statute of Frauds has grown oat of the exercise of the equity powers of the courts. Such judicially imposed limitations or exceptions involved the traditional dispensing power of the equity courts to mitigate the “harsh” rule of law. When courts have enforced an oral contract in spite of the Statute, they have utilized the legal labels of “part performance” or “equitable estoppel” in granting relief. Both doctrines are said to he based on the concept of estoppel, which operates to avoid unconscionable injury. 3 Williston, Contracts § 533A at 791 (Jaeger ed. 1960), Summers, supra at 443-49; Monarco v. LoGreco, 35 Cal. 2d 621, 220 P.2d 737 (1950) (Traynor, J.).

Part performance has long been recognized in Hawaii as an equitable doctrine justifying the enforcement of an oral agreement for the conveyance of an interest in land where there has been substantial reliance by the party seeking to enforce the contract. Perreira v. Perreira, 50 Haw. 641, 447 P.2d 667 (1968) (agreement to grants life estate); Vierra v. Shipman, 26 Haw. 369 (1922) (agreement to devise land); Yee Hop v. Young Sak Cho, 25 Haw. 494 (1920) (oral lease of real property). Other courts have enforced oral contracts (including employment contracts) which failed to satisfy the section of the *35Statute making unenforceable an agreement not to be performed within a year of its making. This has occurred where the conduct of the parties gave rise to an estoppel to assert the Statute. Oxley v. Ralston Purina Co., 349 F.2d 328 (6th cir. 1965) (equitable estoppel); Alaska Airlines, Inc. v. Stephenson, 217 F.2d 295 (9th cir. 1954) (“promissory estoppel”); Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. (1909) (equitable estoppel).

It.is appropriate for modem courts to cast aside the raiments, of conceptualism which cloak the true policies underlying the reasoning behind the many decisions, enforcing contracts that violate the Statute of Frauds. There is certainly no need to resort to legal rubrics or meticulous legal formulas when better explanations are available. The policy behind enforcing an oral agreement which violated the Statute of Frauds,- as a policy of avoiding unconscionable, injury, was well set out by the California Supreme Court. In Monarco v. LoGreco, 35 Cal. 2d 621, 623, 220 P.2d 737, 739 (1950), a case which involved an action to enforce an oral contract for the conveyance of land on the grounds of 20 years performance by the promisee, the court said:

The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that , would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract ....

See also Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88 (1909) (an employment contract enforced).

In seeking to frame a workable test which is flexible enough to cover diverse factual situations and also provide some reviewable standards, we find very persuasive section *36217A of the Second Restatement of Contracts.5 That section specifically covers those situations where there has been reliance on an oral contract which falls within the Statute of Frauds. Section 217A states:

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.

(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant: (a) the availability and adequacy of other remedies, particularly cancellation and restitution; (b) the definite and substantial character of the action or forbearance in relation to the remedy sought; (c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; (d) the reasonableness of the action or forbearance; (e) the extent to which the action or forbearance was forseeable by the promisor.

We think that the approach taken in the Restatement, is the proper method of giving the trial court the necessary latitude to relieve a party of the hardships of the Statute of Frauds. Other courts have used similar approaches in dealing with oral employment contracts upon which an employee had seriously relied. See Alaska Airlines, Inc. v. Stephenson, 217 F.2d 295 (9th cir. 1954); Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88 (1909). This *37is to be preferred over having the trial court bend over backwards to take the contract out of the Statute of Frauds. In the present case the trial court admitted just this inclination and forthrightly followed it.

L. Richard Fried, Jr. and Ted Gamble Clause {Pratt, Moore, Bortz &Oase of counsel) for defendants-appellants.

Katsugo Miho {Fong, Miho, Ohoy & Robinson of counsel) for plaintiffs-appellees.

There is no dispute that the action of the plaintiff in moving 2200 miles from Los Angeles to Hawaii was foreseeable by the defendant. In fact, it was required to perform his duties. Injustice can only be avoided by the enforcement of the contract and the granting of money damages. No other remedy is adequate. The plaintiff found himself residing in Hawaii without a job.

It is also clear that a contract of some kind did exist. The plaintiff performed the contract for two and one-half months receiving $3,484.60 for his services. The exact length of the contract, whether terminable at will as urged by the defendant, or for a year from the time when the plaintiff started working, was up to the jury to decide.

In sum, the trial court might have found that enforcement of the contract was warranted by virtue of the plaintiff’s reliance on the defendant’s promise. Naturally, each case turns on its own facts. Certainly there is considerable discretion for a court to implement the true policy behind the Statute of Frauds, which is to prevent fraud or any other type of unconscionable injury. We therefore affirm the judgment of the trial court on the ground that the plaintiff’s reliance was such that injustice could only be avoided by enforcement of the contract.

Affirmed.

*38DISSENTING OPINION OF

ABE, J.,

WITH WHOM KOBAYASHI, J., JOINS.

Tbe majority of tbe court bas affirmed the judgment of the trial court; however, I respectfully dissent.

I.

Whether alleged contract of employment came within the Statute of Frauds:

As acknowledged by this court, the trial judge erred when as a matter of law he ruled that the alleged employment contract did not come within the Statute of Frauds; however, I cannot agree that this error was. not prejudicial as this court, intimates.

On this issue, the date that the alleged contract was entered into was all important and the date of acceptance of an offer by the plaintiff was a question of fact for the jury to decide. In other words, it. was for the. jury to determine, when. the. alleged one-year employment contract was entered into and if the jury had found that the plaintiff had accepted the offer1 more than one day. before plaintiff was to report, to work, the. contract would have come within the Statute of Frauds. and would have been unenforceable. Sinclair v. Sullivan Chevrolet Co., 31 Ill. 2d 507, 202 N.E.2d 516 (1964); Chase v. Hinkley, 126 Wis. 75, 105 N.W. 230 (1905).

II.

This court holds that though the alleged one-year employment contract came within the Statute.of Frauds, nevertheless the judgment, of the trial court is affirmed “on the ground that the plaintiff’s reliance was such that injustice could .only be avoided by. enforcement of the contract.”

I believe this court is begging the issue by its holding because to reach that conclusion, this court is ruling that *39the defendant agreed to hire the plaintiff under a one-year employment contract. The defendant has denied that the plaintiff was hired for a period of one year and has introduced into evidence testimony of . witnesses that all hiring by the defendant in the past has been on a trial basis. The defendant also testified that he had hired the plaintiff on a trial basis.

Here on one hand the plaintiff claimed that he had a one-year employment contract; on the other hand, the defendant claimed that the plaintiff had not been hired for one year but on a trial basis for so long as his services were satisfactory. I believe the Statute of Frauds was enacted to avoid the consequences this court is forcing upon the defendant. In my opinion, the legislature enacted the Statute of Frauds to negate claims such as has been made by the plaintiff in this case. But this court holds that because the plaintiff in reliance of the one-year employment contract (alleged to have been entered into by the. plaintiff, but denied by . the defendant) has changed his position, “injustice could only be avoided by enforcement of the contract.” Where is the sense of justice?

Now assuming that the defendant had agreed, to hire the plaintiff under a one-year employment contract and the contract came within the Statute of Frauds, I cannot agree,, as intimated by this court, that we should circumvent the Statute of Frauds by the exercise of the equity powers of courts. As to statutory law, the sole function of the judiciary is to interpret the statute and the judiciary should not usurp legislative power and enter into the legislative field. A. C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 93, 451 P.2d 809 (1969); Miller v. Miller, 41 Ohio Op. 233, 83 N.E.2d 254 (Ct. C.P. 1948). Thus, if the Statute of Frauds is too harsh as intimated by this court, and it brings about undue hardship, it is for the legislature to amend or repeal the statute and not for this court to legislate.