dissenting. I must vigorously dissent to the position taken by the majority in the case sub judice. Today’s decision has no basis in Ohio law and defies simple logic. Furthermore, the decision perpetuates the modem “American” rule: sue, sue, sue.
Under a black-letter smokescreen of freedom of contract, the majority turns a basic collection case into a virtual “horn of plenty” filled with attorney fees for appellant. The majority fails to cite one Ohio case in which attorney fees were awarded absent a statute permitting the same or evidence that the unsuccessful party had acted in bad faith. The Ohio Revised Code does not contain any language permitting the recovery of attorney fees in actions such as the one at bar. Moreover, the General Assembly has expressly provided for the recovery of attorney fees, as part of *38litigation costs, with respect to certain statutory actions.8
Also, there is no evidence of bad faith present in the instant action. Appellant initiated this action and the Darbys presented an aggressive but realistic defense. Despite the majority’s suggestions, the Darbys were not “deadbeats” who neglected to pay their bills. From 1978 until early 1983, the Darbys faithfully paid their monthly common assessments. The Darbys then discovered an extremely apathetic and unprofessional homeowners’ association. They revealed how appellant failed to follow its own by-laws and challenged the legality of appellant’s actions brought pursuant to those by-laws.9 The fact “[t]hat appellees interposed a defense which was ultimately overruled does not, in and of itself, demonstrate bad faith.” State, ex rel. Kabatek, v. Stackhouse (1983), 6 Ohio St. 3d 55, 56, 6 OBR 73, 74, 451 N.E. 2d 248, 249. Today’s decision sends a harsh message to these individuals who believed that they were being wronged. That message is to pay the money and keep quiet now or you will certainly pay later, The majority ignores the observations of the United States Supreme Court that “ ‘one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.’ ” F. D. Rich Co. v. Industrial Lumber Co. (1974), 417 U.S. 116, 129.
The majority cavalierly trots out a broad freedom of contract rule from a comment to the Restatement of Contracts and a litany of cases from other jurisdictions which do not closely resemble the action currently before this court. In fact, one of the cases cited by the majority, Farmers Union Oil Co. v. Maixner (N.D. 1985), 376 N.W. 2d 43, involved an action on an overdue account brought by an oil company against an agricultural products company. The agreement by the debt- or company to pay its creditor’s attorney fees was thrown out as being against public policy and void. The majority offers no support for the position it takes under the circumstances presented by this action. Under the instant facts, there is no support under Ohio case law or the case law of any *39other jurisdiction. Rather, the majority finds the attorney fees provisions to be a “neat idea,” as a method of collecting debts.
The majority further finds a homeowners’ association to be helpless without such attorney fees provisions. Has R.C. 5311.23 been repealed by the legislature? That section (still in effect) provides that a “* * * unit owner * * * is liable in a civil action for damages caused to any person by his failure to comply with any lawful provision of the condominium instruments.” Certainly, a provision requiring payment of common assessments is a lawful provision contained in condominium instruments.
There is no doubt that the principle of freedom of contract is a sound one. However, its use is misplaced under the present circumstances. This action does not involve parties of equal bargaining power. Appellant makes no argument, and there is nothing in the record to indicate, that the Darbys had any opportunity to “bargain away” the attorney fees provisions before entering into this “contract.” Purchasing a home is an experience fraught with emotion. When the “right place” is found, the decision to purchase is not only one of cold economics but is emotional as well. Clearly the buyer is at a distinct disadvantage. This case does not present parties in equal bargaining positions. Thus, this court should adhere to Ohio’s well-established view that “contracts for the payment of counsel fees upon default in payment of a debt will not be enforced.” Miller v. Kyle (1911), 85 Ohio St. 186, 192, 97 N.E. 372. See, also, American Nursing Care of Toledo v. Leisure (N.D. Ohio 1984), 609 F. Supp. 419, 433; Federal Deposit Ins. Corp. v. Timbalier Towing Co., Inc. (N.D. Ohio 1980), 497 F. Supp. 912, 929.
Finally, today’s decision does nothing but reinforce the views of many that we have become an overly litigious society. The majority grants carte blanche to those who can insert attorney fees provisions into contracts to sue at will. Why not? The party having difficulty paying his debt because he just lost his job can pick up the tab. It’s in the contract. Sue them, it’s paid for. Moreover, the majority casually allows this small collection case of approximately $2,600 to become a financial bonanza for the attorneys in an amount nearly five times the amount owed. Former Chief Justice Burger mentioned in his annual report to the midyear meeting of the American Bar Association that he had organized a task force to study the state of justice in this country. In his address, he stated that one of the members of the task force “* * * provided an apt summary of the whole problem: ‘some basic institutional reform in the legal profession is what is needed — lawyers have got to stop using the court system as a means of enriching themselves at the expense of their clients. And the courts have got to stop allowing the lawyers to do it. ’ ”10 (Emphasis added.) Unfortunately, today’s decision will be viewed by many observers as perpetuating the problem the former Chief Justice speaks of. I cannot join in such a decision.
Therefore, I would hold that in the absence of a statute permitting the same, the attorney fees provisions embodied in the instant condominium instruments should be declared to be against public policy and void. Accordingly, I would affirm the decision of the court of appeals.
Wright and H. Brown, JJ., concur in the foregoing dissenting opinion.See, e.g., R.C. 163.21, 309.13, 733.61 and 1313.51.
I agree with the following statement of the court of appeals contained in footnote 7 of its opinion: “One particular inconsistency in this case strikes this court immediately. On the one hand, appellee freely admits its unit owners haved [sic] failed to live up to their agreement with it in that they have failed to gather a quorum of themselves to conduct annual meetings and elect officers as required by the by-laws, they have raised monthly assessments by thirteen percent (13%) in a single year which is arguably improper, and they have authorized a professional manager to sign assessment liens, something we allow here by our view of R.C. 5311.18. These departures from the provisions of the by-laws of the home owners’ association have been excused herein for one reason or another; for example, by finding certain unit owners acted as a defacto board of trustees.
“On the other hand, appellee now claims that in spite of their [sic] admitted failure to follow their [sic] by-laws or their [sic] ‘loose’ interpretation of them, appellants] should be held to a strict interpretation of them, and compelled to pay appellee’s attorney fees for first alleging and then showing, at least in part, that appellee failed to follow such rules. One could legitimately accuse appellee of simultaneously urging strict construction of the by-law’s attorney fee provision while demanding liberal or loose construction pf the same by-laws concerning the selection and authority of its board of trustees.”
Burger, The State of Justice (April 1984), 70 A.B.A.J. 65.