فهرست مطالب قاسم نبی زاده کبریا

In the light of the principle of free will, the parties to the contract generally enter into the contract freely and voluntarily, but since some of these contracts do not comply with ethical and legal teachings, the intervention of the legislature and the courts in contracts with unfair terms is justified and sounds right. The purpose of this article is to identify examples and effects of unfair terms in the contract with an emphasis on ethical teachings.

This article has been done by descriptive-analytical method and using documentary and note-taking method.

In all stages of the present study, while respecting the originality of the texts, honesty and trustworthiness have been observed.

The findings show that if the balance between the value of exchanges is lost by entering unbalanced and unfair terms, the mentioned terms are unfair. This is while the contract was concluded with the intention and consent of the parties. Today, contracts such as construction, conditional lease, transportation contracts, insurance, loans, and contracts of adhesion have led to the abuse of power by those in power, thereby reducing the amount of their obligations and responsibilities and imposing unfair duties and responsibilities on the other party to the contract. Also, due to the contractual obligation, the right to make adjustments is revoked by the lost party contracts. 

Justice and the need to observing ethics in the provisions of agreement and non-unilateral conditions of contracts are the principles that occur in most legal systems. The results obtained from this article indicate that by relying on jurisprudential, legal and ethical principles, it can be understood that Islamic jurisprudence and law in the realm of exchange contracts believe in the principle of exchange justice. Ability to terminate or cancel a transaction that has a kind of imbalance in the exchanges (such as fraud, usury, distressed sale according to some views), in the shadow of the principle of exchange justice have the capacity to comply with legal principles and foundations; and without considering this principle in exchange contracts, The logical, religious and legal justification of these examples seems difficult. Adjustment of unjust terms is also valid in terms of Islamic principles and based on jurisprudential principles, adjustment of unfair contracts can be recognized in Iranian law and the ability to terminate or balance these types of contracts for the aggrieved party and the courts can be predicted.

Given the rule of free will, traditional contract law cannot always lead to efficient contracts. In unjust commitments, non-interference by the government systematically promotes the position of one over the imposition of excessive aggression on the other. The main question is whether it is necessary to limit this principle based on the economic analysis of contracts? Can the government make a mandatory regulation to adjust the obligations of the parties? Are there examples of economic adjustments of obligations in current Iranian law?

Theoretical frame work:

On the one hand, this study points to the need for government intervention in the contract and the restriction of the principle of free will in unfair terms, On the other hand, legal examples explain the interference based on the economic efficiency of the government in contracts. Finally, the assumption of the necessity of government intervention has been expressed based on the economic analysis of the obligations in the contracts.

This study tries to explain the necessity of efficiency-based intervention by examining the drawbacks of government interference in private contracts and by examining the existing legal examples, to answer the main questions of this research based on a descriptive-analytical method.

The variety of contracts, the complexity of markets, the specialization of knowledge of production, supply and use of goods seem to indicate the lack of complete information and reasonable choice by the weak contractors (usually the consumer). Weak parties to transactions governed by traditional contract law are no longer able to balance their interests and obligations in the contract and efficiently allocate resources. Within the framework of traditional transaction law and based on the principle of freedom of contract, most transactions or contractual conditions systematically lead to the loss of the weak party and inefficient allocation of resources. These shortcomings worldwide and in limited cases in Iran, led governments to intervene in the agreements in the form of identifying unfair terms with the new regulations, and in this way seek to eliminate those shortcomings. Government interference in contracts with unfair terms is based on a number of factors, including economic efficiency (efficient resource allocation).

Conclusions & Suggestions:

Identifying and guaranteeing the implementation of unfair obligations in law is the result of government intervention and public rules in the private contractual relations of individuals. Traditional (formalist) law, which deals only with the external aspect of contracts, cannot eliminate a defect in the market that leads to irrational or unfair choices. Therefore, the legislator's action in enacting laws should be such as to distribute the resources of the parties to the contract in accordance with their accepted obligations.  This instrumentalist approach to contract law can eliminate their unjust or irrational obligations. Therefore, it seems that one of the justifying principles of government interventions in the private transaction relations of individuals, in addition to social necessities and ensuring maximum justice, is to reach effective agreements from the perspective of economic analysis of contracts. Studying the limited cases of discussing unfair terms in domestic law, it is understood that if a contract leads to the maximum allocation of its resources to each of the parties at the lowest cost, such an effective agreement will not be subject to legislative intervention. However, it seems that governments and public forces in limiting the scope of unfair terms and, consequently, restricting the principles of validity and freedom of contracts should limit their involvement to the extent necessary (contract efficiency) to pave the way for the emergence of talent and capacity. Be available in the open market.

Extension of social life, advancements in technology, specialization of jobs, and personalizing of economics activities are the main causes of social gaps. Inequality in position, cusses the contracts with excessive obligations and disproportionate assignment than the parties’ rights. Extension of this agreements forced some of world legal systems against such matters. Contrary to what happened in the UK, the position of Iranian legislators in dealing with this type of obligations is named "Injustice", "Unfair", or "Imposed Clauses". One way for the prevention and control of this kind of clauses is called substantive control. Straight scouting of the content of contractual terms by legislation (legal control) or submitting valuation of unfair terms to the court (judicial control) are two supervisory methods in UK. Now the main question is that can Iran use the substantive controls methods for control of unfair contractual obligations similar to the UK? This paper will analyze the basis of substantive control of unfair terms in UK, and the necessity and possibility of exploitation of this rule in Iran's legal system