جستجوی مقالات مرتبط با کلیدواژه « unfair terms » در نشریات گروه « فقه و حقوق »

In the French legal system, in order to control the fairness of the terms and judicial supervision of consumer contracts, two general categories of criteria have been identified and introduced to control them. The first one is  the Commercial Code, which governs all "commercial contracts" and forms part of a broader law on unfair competition law; it has historically been rooted in countering abuses’ by large retailers of their suppliers of goods. Second, in civil law, which seems to be influenced by the criteria for controlling the terms of consumer contracts in European law and governs the terms of contrats d’adhésion. That is, cases in which the "will" of one of the parties to the contract is not taken into account. In Iranian law, there is no objective criterion for recognizing the unfairness of conditions, and as a result, it has become difficult to control them. The law on e-commerce and the law on the implementation of the general policies of principle 44 of the Constitution are not helpful in this regard either, and the need to pay attention to this important issue is fully felt.

An appealing option in order to insure that parties to a contract adhere to their obligations and to clarify their goals in a more reliable manner is to stipulate a penalty clause or civil remedy in the contract. In this way, on the one hand, the obligor finds himself involved in legal effects and tries both to avoid the stigma of breaching the contract and to avoid the penalty, and on the other hand the obligee monitors the results of the contract with peace of mind and in case the other party breaches the contract, he is confident that he would be compensated for his loss by relying upon the mentioned penalty. Such a condition has a logical and rational basis and is not inconsistent with legal foundations and principles. On this basis, our legislator, apart from its recognition in general articles such as articles 10 and 219 of the Civil Code, clearly gave it legitimacy in article 230 of this Act. However, the serious question is, to what extent and to what amount do those who enter into contract have freedom of action to insert such a condition in it? Can they stipulate a penalty clause in a contract as much as they want, even if it is manifestly excessive in amount? The passage of time has shown that in dealing with certain examples the freedom to insert a penalty clause arising out of breach of contract in any amount is far from justice and fairness. In order to remove this concern, in the amendment of the Civil Code (2016) the French legislator, according to Article 1231-5 restrained and modified this condition based on custom, logic and justice.However, in our legal system, heedless of the unwelcome results of this condition, not only the judicial precedent was not revised, but according to the binding precedent No. 805 dated January 5, 2021, the ruling prescribed in Article 230 of the Civil Code was affirmed.

Public policy and mandatory rules play an important role in international commercial arbitration to the extent that the non-observance and application of public policy and mandatory rules by arbitrators, as the case may be, challenge the invalidity or non-enforcement. These two legal establishments narrow the scope of the free will of individuals and prevent the arbitrability of some issues. In addition to these similarities, there are also differences between public policy and mandatory rules, such as the mechanism of impediment to arbitration; In this way, mandatory rules appear as a primary obstacle and are aggressive, while public order is a secondary obstacle and is defensive. Public policy and mandatory rules are also important because they can be used as a legal tool and basis for the invalidation of unfair terms in arbitration agreements. However, it seems that public policy rules do not work in all cases to invalidate unfair terms, and that special legal provisions should be drafted to provide an appropriate solution to the challenge of unfair terms in arbitration contracts. A similar move can be seen by the French legislature. Utilizing a two-layer government control system to provide an opportunity to renegotiate and adjust the contract is a good way to deal with and overcome the challenge of unfair terms in arbitration contracts.

Unfair terms are imposed by one of the parties on the other party by abusing his/her socio-economic status or expertise. Given the governance of the principle of freedom of will, to solve the problems arising from the absolute acceptance of this principle, the legislator has intervened in special lawa under various excuses. By abiding the rule of fairness and justice, the courts have dealt with this category of unfair terms and have decided to invalidated all or parts of the contract or modify it. This study aimed to investigate some examples of unfair terms and the strategies applied by legal systems of Iran and England in dealing with such terms. Of the examples of unfair terms, we can refer to limitation of liability clause, penal clause, as well as additional and standard contracts. The most important legal sources of unfair terms in Iranian law, in addition to the common law (civil law), include special laws such as maritime law, labor law, e-commerce law, and protection law for motor vehicle consumers. The legal control of unjust contract terms by the legislator and assigning the evaluation of these terms to the courts are considered as two monitoring methods in England, whaich are not accepted in Iranian law except in special laws and under exceptional conditions.

The principle of fairness is one of the principles of trade law, which is sometimes violated by some traders' anti-competitive practices. Incorporating unfair terms into commercial contracts is one of the acts that can compromise the quality of implementation of this principle. These conditions are sometimes imposed as a result of the behaviors of the macro-traders in the primary supply chain loops in the end-ring trader contracts, and sometimes as a result of the circumstances surrounding the business and consumer contracts. To prevent the abovementioned conditions in contracts, the technological solution offered internationally is the implementation of decentralized platforms and the conclusion of commercial contracts in the form of smart contracts. The mechanism for concluding these contracts is in such a way that the insertion of an unfair condition results in the contract not being formed. But the implementation of this mechanism in the legal system of countries faces challenges that require some legislative policymaking, including the harmonization of international regulations and the creation of information transparency.

Today, there is less dissidence in the limitation of implementation of the principle of contractual freedom. Especially, the principle cannot be considered as a basis of legitimacy and validity of the contract in B2C contracts or where a person in a weaker position than the other, or in standard contracts or contracts that are not negotiated by the parties. The imposition of any unjust and unfair condition that is contrary to good morals, public order and the obligatory rules is invalid. This prohibition cannot be violated by concluding a contract or including a condition in the contract. The sanction of the implementation of such a violation is the invalidity of the legal action. The uniform judicial precedent no 794 expresses the same view. The surplus profit condition is contrary to the general economic order and contrary to the obligatory rule and violates the prohibition of the legislator. Inspired by this this uniform judicial precedent, the courts should in any other case easily rule on the invalidity of a legal act which has violated a prohibition, and in principle prohibitions in the banking and monetary matters

Most civil law and civil liability regimes emphasize the principle of balance between loss and the amount of damages awarded to the injured party. The principle of compensation in French law is without exception and has a similar application in the field of contracts and civil liability. In Iranian law, as we will see, this principle is questionable and it is better to call it the principle of balance between loss and compensation. This principle seems to be ineffective, especially with regard to unfair terms in consumer contracts. Under French law, these terms are prohibited in consumer contracts, where one party is a professional and the other party is a consumer. The forbidden term is removed from the contract, the rest of which remains valid. In Iranian law, the claim of invalidity is not documented in any laws and the existing enforcement sunctions does not have the necessary deterrent to prevent the losses. This study shows that in both legal systems, consumer protection laws do not effectively prevent contractual unfair terms, because the principle of full balance between loss and compensation does not create sufficient and effective incentives for the parties. Therefore, it is necessary to consider punitive damages in both legal systems as an effective incentive to avoid Lucrative faults.

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.

Social reality suggests that today there is less chance that the parties will benefit from the same conditions in their preliminary negotiations for concluding a contract. In order to satisfy their needs, individuals are bound to conclude contracts with owners of capital, which are often subject to monopoly and imposed terms. The parties to the contract for the purpose of guaranteeing and consolidating the obligations arising from the contract, in the form of an advance payment, in case of misconduct, each of them is paid as damages to the opposite party, which sometimes is very high. In this paper, by using an analytical and descriptive method to explain the Excessive obligations and to consider them as unfair terms and how to deal with them, first, the legal status of a high level of engagement is expressed and in the final discussion, how to deal with exorbitant obligations such as contract revocation or modification

Air transportation contacts are those which considered for numerous consumers. Given the point that thousands and even perhaps millions of daily transportation contracts between the airline companies (as the expert) and passengers (as a consumer) are placed, identifying the unfair terms in the contracts, which represents airlines abusing their power, seems to be necessary. It is also noteworthy that for fighting against the unfair terms, in addition to identifying the instances of the unfair terms, applying the appropriate legal strategy is also demanding. European Nation country members attempted to develop new strategies in order to fight against the unfair terms. The present study aimed to initially identify the unfair terms and then investigate their relevant provisions

The unfair terms are one of the most important issues regarding consumer rights and life today cannot be imagined without using various consuming products. Meeting consumer needs is dependent upon the conclusion of contracts that are often associated with provisos. Additionally, the promptness of the societies' economic move and emergence of class gap has led one party to imposing unequal terms and ultimately more or perhaps the absolute domination of one's will to collapse and undermine justice and fairness. European states have always attempted to control such terms. This query, through examining the concept and status of unfair terms in the European and Iranian laws and some of the examples of unfair terns stipulated in Directive No. 93/13 of the European Economic Community and considering the opinions of the Imamiyah jurisprudents as to justice and fairness, has come to this conclusion that given the dispersion of the opinions of Imamiyah jurisprudents regarding justice and fairness, these concepts are not an appropriate tool for controlling unfair contractual terms. In this regard, other jurisprudential grounds such as system disorder, unlawful ownership and impossibility of the terns could be employed. Paying attention to lack of a general rule in Iranian laws in controlling these terms highlights this significant issue.

Nowadays imposing unfair terms on weak contracting party by strong party especially in consumer contracts is an undeniable fact. In foreign law primarily courts interfered in benefit of the weak party and by assistance of interpretative techniques used the capacity of general prenciples of contracts to confront those terms and in the next step the approach of protecting consumer against unfair terms was followed by legislators. Now consumer code of most countries has a part for control of unfair terms that defines some contract terms as unfair and declare them invalid.but unforchonatly in iran the consumer protection code has not such regulations.so in this circumstances of legislative vacumm and considering the necessity of intervention, the only solution is judicial control. the study of techniques that courts have utilized to confronting these terms in the other countries shows that minimal tools which is necessary for this control is also available in the iran law.the most important legal tool that seems iranian courts can use for confronting unfair terms is the concept of public policy(article 975 of Civil Code)

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.

Drawing up the insurance contracts by insurance companies has led to disregard policyholder''s rights. This means that insurers by inserting unfair terms in insurance contracts seek to make a contract that they gain special privileges for themselves. Jurists as main opponents of injustice regard commitment not to insert unfair terms as one of the insurer''s pre-contractual obligations in insurance contract. Insurance law and commercial insurance bill is silent in this regard. But considering principle of justice in Imamiah jurisprudence، this obligation can be considered for the parties in all contracts. Principle of justice and equity can be effective to solve many judicial problems. Also it is seen a tendency to equity in some decisions of courts. In this paper we seek to study concept of unfair terms and its instances in insurance contracts. At the end، considering some rules and regulations it can be said that such unfair terms are invalid in insurance contracts.

Penalty clause is one of the sanctions of contract performance according to which parties intend to pay liquidated amounts as remedy for breach of the contract (Art. 230 Iranian civil law).The purpose of such agreement is to secure the contract and to facilitate the remedy without complexity of proceedings. Its nature in Iranian legal system is remedy not penalty and punishment. It isnt revisable by court. Although it's not necessary for the penalty clause to be exactly equal to actual damages but in some cases its specified amount is excessive and it's not in reasonable proportion to actual damages so far there isnt reasonable proportion between them. In other word, because of undesirable economic status and other conditions of the contract, the promisor can never pay it, thus such agreement is unreal, unjust and inadequate matter. In this case, there are two prominent views. Some authors state that penalty clause is absolutely correct and operative, and the others believe that the court can adjust it. But this sort of clause is void in our view. In this article we will explain nature and characters of penalty clause and also the legal status of unjust penalty clause.