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Azadeh najafi; ebrahim taghizadeh; ali chahkandinezhad
Abstract
This article examines a special form of contract in which one party has a superior or exclusive power that prepares and imposes the terms and conditions of the contract on the other party. Without having the right to negotiate and discuss, he is forced to accept and It is annexed to it. The present study ...
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This article examines a special form of contract in which one party has a superior or exclusive power that prepares and imposes the terms and conditions of the contract on the other party. Without having the right to negotiate and discuss, he is forced to accept and It is annexed to it. The present study investigates the protection of the weak party in the imposed contracts in the laws of Iran and Egypt using a comparative analytical method. The findings show that the Egyptian legislature has intervened in the imposed contracts that are described as unfair and unjust, in order to protect the weaker party of the contract. Modification of the contract, removal of unfair terms, and interpretation of the contract in favor of the injured party are foreseen in Egyptian law. In Iranian law, this issue has not been explicitly addressed despite the existence of jurisprudential and legal capacities. Despite this, in approving new laws, the legislator has shown his desire to protect the weaker party, which is mainly the consumption of certain goods and services. Also, it is possible to modify the contract according to the jurisprudential rules of harmlessness and negation of harm, although the judicial procedure tends more towards the stabilization of the contract, according to the principle of the sovereignty of contracts, and finally it tends to terminate the contract.
Azadeh najafi; Ebrahim Taghizadeh; Ali Chahkandinejad
Abstract
An imposed contract is a new contract, the validity or invalidity of which is disputed. Well-known Imami jurists believe in the invalidity of new contracts, but later and contemporary jurists believe in its validity. In Iranian law, the principle of validity of contracts governs it. An imposed contract ...
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An imposed contract is a new contract, the validity or invalidity of which is disputed. Well-known Imami jurists believe in the invalidity of new contracts, but later and contemporary jurists believe in its validity. In Iranian law, the principle of validity of contracts governs it. An imposed contract has the general conditions set forth in Article 190 of the Civil Code, and the specific conditions. Some of these characteristics are related to the subject and property of the contract, some are related to the characteristics of the proposing party, some are related to the general provisions of these contracts, and some are related to how the contract is required and accepted. Numerous proposals have been made to support the weak side of the contract in the imposed contracts. Modification of the contract, interpretation of the contract, removal of the contract terms, termination of the contract, are among these proposals. In the Consumer Protection Law approved in 2009, the General Policies Implementation Law in Article 44 of the 2008 Constitution, the Insurance Law approved in 1316, the Maritime Law in 1343, the Electronic Commerce Law approved in 1382, the building pre-sale law approved on 89/10/12, protection We see the injured party in the imposed contracts. Of course, what ensures the interests of the weak party in the imposed contracts is the adjustment or elimination of unjust and unfair conditions while maintaining the principle of the contract, and the guarantee of invalidity, termination and non-influence can not ensure the interests of the weak party that needs to conclude the contract. Slowly It seems that in order to protect the weak side of the contract, and due to the lack of explicitness and the provision of a specific performance guarantee, such an article should be approved: If a contract is entered into by imposition and entails unfair, unfair or oppressive terms, the judge must, as far as justice is concerned, modify those terms or exempt the weak party from enforcing them, and in interpreting the contract, the expediency of the party. Consider the weak.
