فصلنامه پژوهش حقوق خصوصی
پیاپی 10 (بهار 1394)

In European law and Common Law, on the basis of consumer protection, unfair contractual terms are subject to specific regulation. In domestic law, lack of such regulation can clearly be observed. According to general principles of contract law, these terms seem to be valid. As far as article “46” of Electronic Commerce Act of I.R.Iran is concerned, unfair terms, which are harmful to consumers, are not effective. Nevertheless, due to the specific and protective basis of E-consumers, this provision does not apply to other cases, and therefore, it is not possible to refer to fairness under any rubric due to the lack of enforceability. In addition, although the principle of freedom of contract, the theory of the ‘will’ parties and the necessity of contract indicate the validity of these terms, judges, in litigation, could deal with dispute resolution based on fairness. The Unfair Terms in Consumer Contracts Directive 93/13/EEC is European Union Directive (then called European Economic Community Directive) which governs the use of surprising or onerous terms used in order to deal with consumers.

In the late 1980s, imposing stringent environmental regulations in industrialized countries increased the costs of eliminating hazardous waste, and thus its transport to the developing and Eastern European countries began. Following the enhancement of the amount of hazardous waste and relevant disasters in these countries, the export of such wastes was recognized as a serious business by the international community. Hence, in 1989, Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Principle Disposal was prepared by the United Nations Environmental Program and adopted by different countries. Meanwhile, in1993, Iran became a member of the Convention subsequently referring the disposal of special waste overseas to its regulation in Article 14 of the Law on Waste Management (2005). In relation to the damages of transporting hazardous waste and its compensation, the Convention has designed an Additional Protocol; attached to the double standard of strict and fault-based liabilities with limited financial strict liability. Basel Protocol has promoted the Basel Convention regime to ensure minimum compensation through compulsory insurance, supplemental financial compensation and time limits for claims. However, unlike other international conventions on hazardous waste, it has assumed strict liability not to be undertaken by the carrier, but by the people via the temporal distribution of responsibilities.

In Iranian law, the sale contract consists of two mutual acquisitions formed together. These acquisitions are in the same level regarding their positions (Article 338 of Iranian Civil Code). However, in spite of being in the same level, transposition of two acquisitions are possible, since dichotomy in time of credit affairs allows us to maintain causing correlation of commitments and to separate them from each other at the same time. Therefore, although traditional view of legal and jurisprudential issues does not accept such a condition, following a new approach and focusing on credit reasons, it is possible to accept transposition in the effect of contracts. The issue examined in this research is that the parties may agree to "temporally" submit the transfer of ownership based on their ‘will’, since the field of credit affairs follows sides` determination aside from developmental affairs. Based on the principle of determination prominence and article 10 of the Civil Code, such agreements should be corrected based on sentences, and hence we should not deal with law issues by ignoring ‘will’ of parties as a result of inappropriate and philosophical interpretations.

Incidents may occur during the performance of the contract which prevent one or both parties from performing his obligations, even though the parties do not have any role in causing such incidents. Art 79 of the CISG deals with the impossibility of the performance of the contract as a cause of exemption from liability for damages arising from a breach of contract. In some cases, the circumstances, which have been the basis of the contract balance at the time of contract formation, change and subsequently the performance of the contract becomes difficult. The CISG contains no specific provision dealing with hardship (Taassor) and related exemptions. Therefore, a question arises as to whether the CISG covers such cases. There are different doctrinal views and jurisprudence which will be discussed in this article.

In the realm of commercial trade, it is a common practice that sellers and buyers manifest their intentions to conclude the contract of sale through different communications and correspondence. The parties may exchange forms and general terms prepared invariably in advance for all contracts. There may be a conflict between the buyer’s and the seller’s forms. Thus, when a dispute arises between the parties, the main question is whether a contract has been concluded, even though there are conflicting terms. If the answer is positive, a further question is: What are the terms of this contract? By considering circumstances and conduct of the parties, on the whole, after the exchange of the forms, it can be said that there is a valid contract. A viable solution is to disregard the conflicting terms, and instead, to consider provisions of the law governing the contract. When CISG is the law applicable to the sale contract, its provisions may well be used to fill the gaps after conflicting terms are ruled out.