dissenting.
I.
On the authority of two ancient Idaho cases today’s plurality holds that a vendor need not offer a vendee the opportunity to cure a default and'sustains Hecla Mining in depriving the widow Borchert of what may be her one meager asset. In so doing, the plurality of a necessity ignores (1) the fact that Hecla Mining by a course of conduct indulged her defaults; and, (2) time-honored Idaho case law which firmly established that such a course of conduct waives the vendor’s right to declare forfeiture without first giving a reasonable notice of default to the vendee, which notice provides an adequate opportunity to make the delinquent payments.
By the plurality’s and Hecla’s admission, the Borcherts had made payments only irregularly from 1976 on. Nevertheless, Hecla accepted those sporadic payments and gave no indication that it would not continue to so indulge Mrs. Borchert’s poor financial situation. In such an instance, the rule of Williamson v. Smith, 74 Idaho 79, 256 P.2d 784 (1953), is applicable and dispositive:
“Where a contract for sale of real estate makes time of the essence, and provides for a forfeiture of the vendee’s rights for failure on his part to make payments at certain times, a continued course of conduct on the part of the vendor in failing to declare a forfeiture, thereby leading the vendee to believe that the vendor waives a strict compliance with the terms of the contract, works a waiver of the vendor’s right to declare a forfeiture, unless and until he gives the vendee reasonable notice of his intention to do so, and a reasonable opportunity to make the delinquent payments.”
74 Idaho at 82-83, 256 P.2d at 785 (quoting Stringer v. Swanstrum, 66 Idaho 752, 760, 168 P.2d 826, 829 (1946), which in turn quoted Sullivan v. Burcaw, 35 Idaho 755, 763, 208 P. 841, 843 (1922)) (emphasis added).
This rule applies regardless of whether the contract expressly contains a requirement of notice. Id.; Stockmen’s Supply Co. v. Jenne, 72 Idaho 57, 63, 237 P.2d 613, 617 (1951) (“[T]he above rule was announced [in Sullivan ] even though the contract did not require notice of forfeiture____”).
Instead of providing Mrs. Borchert with requisite reasonable notice and opportunity to cure the default, Hecla, by its two identical letters to Mrs. Borchert, declared a forfeiture eo instante. At oral argument, Hecla asserted that, absent an express pro*486vision in the contract for the giving of notice, none was required.1 Precisely that same argument was made to the Williamson court.
In Williamson, the contract contained a forfeiture clause in form only slightly different from the instant one. The Williamson contract provided:
In the event of a failure to comply with the terms hereof, by the parties of the second part, the said parties of the first part shall be released from obligation in law or equity to convey said property, and said parties of the second part shall forfeit all right thereto, and all payments made on said property.
It is expressly understood and agreed that time is the essence of this agreement, and that upon a default in any of the payments, convenants or conditions herein contained on the part or behalf of the said parties of the second part to be paid, kept or performed, the said parties of the first part may immediately re-enter and take possession of said premises and every part thereof, and to eject said parties of the second part therefrom, and said parties of the first part shall be released from all obligations, either in law or in equity to convey the said premises as herein provided; and any amount which shall have been paid hereon by said parties of the second part, shall and may be retained by the first parties and accepted by them as rental for said premises during such occupancy by said parties of the second part.
It is understood and agreed that time is the essence of this agreement.
Williamson, Exh. A.
With that contract before it, and with the vendor citing Prairie Development Co. v. Leiberg, 15 Idaho 379, 394, 98 P. 616 (1908), this Court held that the law required the vendor to give notice of the intention to declare a forfeiture so as to allow the vendee a reasonable opportunity to make the delinquent payments. Williamson, supra, 74 Idaho at 83, 256 P.2d at 785.
The Williamson Court, in declining to resurrect and apply the holding of Prairie Development, instead turned to the language of Sullivan v. Burcaw, 35 Idaho 755, 764, 208 P. 841, 844 (1922), which had been relied upon in Stringer v. Swanstrum, 66 Idaho 752, 168 P.2d 826 (1946). In Sullivan, the Court had severely limited Prairie Development:
We have been cited by respondent to the case of Prairie Dev. Co. v. Leiberg, 15 Ida. 379, 98 Pac. 616. As we understand the facts of that case, the court held that where payment for the land was to be made instalments, and the vendor, by a written agreement indorsed on the original contract, specifically granted a definite extension of time to make one of the payments, this fact would not waive the conditions of the contract as to the time of future payments. We approve of that conclusion because a specific agreement in regard to one payment could not be held to apply to others and the vendee could not be misled. We do not consider that decision conflicts with the conclusion we have stated above as to the effect of a continued course of conduct waiving the strict provisions of the contract.
Sullivan, supra, 35 Idaho at 764, 208 P. at 844 (1922) (emphasis added).
As was also the case in Sullivan, here there was a continued course of conduct of indulging in the Borcherts’ fitful payments for some five years. This being so, Sullivan and its progeny required Hecla to give notice allowing Mrs. Borchert the opportunity to cure the default. Such was the case law then in effect. Mere intimations by Hecla that it might declare a forfeiture were not enough — specific notice of a declaration of forfeiture and the opportunity to cure were required. It is a total mystery why today’s majority passes over later cases squarely in point in favor of falling *487back to a 1908 case which thereafter never again was cited by an Idaho court for the principle here involved other than in Coe v. Bennett, 46 Idaho 62, 266 P. 413, in the year 1928. But in 1951 and in 1953 the Court had announced, respectively, its opinions in Stockmen’s Supply and in Williamson.
The briefs in Coe have been examined. Sullivan was not cited or argued to the Court for the principle here involved. Although Prairie Development was cited, the Court in Coe relied upon Papesh v. Wagnon, 29 Idaho 93, 157 P. 775 (1916), quoting directly from it. Sullivan, however, was then more recent authority than the Papesh case. The issue in Coe, moreover, was not the issue in this case. That case was not an action to resist a forfeiture, but an action by a defaulted vendee to recover back payments made which were in excess of the amount forfeited — a principle which the Court did not espouse until almost 30 years later in Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020 (1954). Of interest, the respondent in Coe cited only one case, Hall v. Yaryan, 25 Idaho 470, 138 P. 339 (1914). Therein Justice Ailshie forecast the case law of Graves v. Cupic.
While there is a certain freedom of contract in Idaho, since 1922 the case law has required a reasonable time — set by notice of default — before such harsh terms of a contract can be applied. For whatever reason, and none appears, other than sheer indifference, the plurality works a gross miscarriage of justice on Mrs. Borchert and makes a shambles of 60 years of Idaho case law which has never been questioned. Fortunately the plurality opinion lacks the impact of a majority opinion. Wherever Idaho jurisprudence, or lack thereof, may come up for discussion, Borchert v. Hecla Mining may take its rightful place along side of Duthie v. Lewiston Gun Club, 104 Idaho 751, 663 P.2d 287 (1983), where the doctrine of res judicata was stood on its head.
II.
Not content in destroying the law regarding forfeiture, the plurality further embarrasses itself by addressing the question of whether the contract at issue was unconscionable. This gratuitous dissertation ignores its own observation that plaintiff Borchert had not raised this issue, either in the trial court, or in this Court. The plurality accurately observes that the contract payments were “certainly modest” —a fact which no one has challenged — then observes a series of other factual circumstances which the casual reader might deem to be of interest, but which are wholly irrelevant to the question of whether the contract provisions which failed to require notice were in that respect unconscionable. Overlooked entirely is the fact that a vendee who had faithfully attempted to make monthly payments for 20 years, but who was a day late one month, may be forfeited out. “Arguably harsh,” comments the plurality, but excuses itself with the observation that the contract doth so provide. Interested readers and litigants in the future may want to keep in mind that those comments on unconscionability are mere obiter dicta of a plurality opinion, wholly without any precedential value.
If the plurality wanted to add some comment favorable to Hecla, while at the same time reversing the decision made below, it could point out that Hecla was in all probability selling its millworker houses to its employees for less than rent. (For which reason Mrs. Borchert obviously could not present even a facsimile of a case in restitution for unjust enrichment, per the Graves v. Cupic doctrine.) Its indulgences in her inability to make monthly payments were undoubtedly out of compassion and by reason of simply not wanting the property back — as witnessed by the fact that it immediately sold the same for apparently the amount which she owed. Certainly Hecla did not act out of greed or avarice. Unfortunately, it did act out of ignorance of the then existing state of the case law. Either a new general manager, or its attorney, or both were uninformed on such mundane matters as Idaho property law. Little matter, because that case law is not being followed by the very Court which created *488it. Worse yet the plurality does not acknowledge that it knows what it is doing.
Even worse, there may be those who comprise the necessary three votes for affirming the judgment below who do not know what is being done. One would like to think that where two members of the Court (also a plurality) have laid out contrary views which are documented on precedential case law, at least one justice among the three would deign an attempt at illustrating how today’s decision may be distinguished from Williamson. If two dissenting voices remonstrating from the very midst of the Court are unable to penetrate the stone-wall veneer with the thrust of indisputable precedent, what, then, may the poor practitioner expect? In other recent cases, the Court has seen fit to overrule prior case law, and delineate its reasons for so doing. Cheney v. Palos Verdes, 104 Idaho 897, 665 P.2d 661 (1983); Barnard v. Akins, 109 Idaho 466, 708 P.2d 871, (1985) (pending disposition on petition for rehearing).
. Hecla relied on an early Idaho case upon which the district court had also relied, Prairie Development Co. v. Leiberg, 15 Idaho 379, 98 P. 616 (1908), in turn blindly accepted by today’s plurality as the controlling case.