جستجوی مقالات مرتبط با کلیدواژه « آزادی قراردادی » در نشریات گروه « فقه و حقوق »

The conflict of justice and freedom is as old as contractual law. Despite the controversy over the justice protection and to restrict freewill , for many years, freedom of contract dominated the path to the interest of individuals and distributive justice in the community. But, over time, the economic relations of societies, shook the assumption of freewill. The scope of the application of standard contract, more than other contracts, is based on the justification of parties freewill in using these forms and of course, saving time, costs and having a superior position in imposing contractual terms. Abuse of this freewill, justifies the restriction of this principle and tendency to observe contractual justice as well. Lack of freewill in contracting parties, inequality of transaction power and market failure, are the main reasons for tendency toward controlling standard contracts. the author, in addition to comparative review of these reasons, tries to evaluate their importance regarding to the available criticism.

Marriage is the main and traditional form of family formation in the two legal systems of Islam and France. In the evolution of French family law in recent years, a concept called contractualization has been the focus of lawyers' attention. Contractualization is a process in which areas of family law that have not been contractable become contractable with the approval of new laws. It seems that contractual freedom in family law faces at least three interpretations. The comparative study of these interpretations in French family law and Imami jurisprudence as the origin of Iranian family law shows that in French family law, the process of contractualization reflects the lack of contractual freedom with the three interpretations in family law. While according to the author's view, the contractual freedom with the proposed three interpretations is current based on the Iranian family law and Imami jurisprudence. The first interpretation is the principle of non-opposition of the agreement, with the mandatory rules of family law in the cases of suspected opposition. The second interpretation is the possibility of determining the terms of the contract, which indicates serious freedom in applying the agreements of the spouses. According to the author's opinion, this principle also does not exist in French family law. The third interpretation is the well-known interpretation in the law of obligations, which does not exist in French law related to marriage.

The freedom to transfer property as one of the most prominent examples of contract law issues, is limited by tax laws. Iranian Direct Taxes Law, has considered taxable the transfer of real estate with any legal nature - Sale (Art. 59), Exchange (Art. 63), Gift (Art. 119 to 128), Inheritance (Art. 17) etc. - whether official (Art. 52, 59 and 187) and informal (Art. 52, 59, 61, 64, 71, 74, 78 and 80), and whether they are for business purposes or otherwise (application of arts. 52, 59 and 77). On the one hand, such a situation has caused an illegitimate infringement of the tax laws on the sovereignty of will and freedom of contract, and on the other hand, it has prevented the realization of the goals of tax redistribution. The basic question is how the imposition of real estate transfer tax does not encounter the legal freedoms of individuals? The main method of this research is descriptive-analytical and in a library style. Because of the relationship between this research and the function of tax institutions, field research has also been considered. As a result, the separation between professional real estate transfer contracts (based on business) from contracts concluded to meet personal needs (non-professional) and the taxation of the first group can prevent the above encounter.

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.

In Iranian and English law -relying on numerous legal bases especially the privity of contracts and scattered articles of the law- the rule is prohibiting the imposition of a third party as the new party to the contract; This means that after the conclusion of the contract, the parties can refuse the unwanted encounter with a person other than the Primary party at the time of the conclusion of the contract, but its dimensions and components face many ambiguities and questions. The most important question is what are the principles and rules of these two legal systems, how they prohibit the imposition of a third party as a party to the contract, and what are their commonalities and differences? In this research by Studying the Doctrine and judicial decisions in a descriptive-analytical manner, we found despite the acceptance of the Prohibition’s rule in both systems, there are serious distinctions in its implementation. While Iranian law essentially denies the acceptance of a third party as a party to the contract without the consent of the other party, the British legal system tries to prevent the elimination of the previous party and allows a third party to be present in the contract and in fact, puts the third party next to the previous contracting party.

Private autonomy is one of the principles of human rights,according to which the individual freely exercises his will fully, in individual and social life. Imposing a duty on a person is just when it is based on the free choice of the individual. The principle of freedom of contract and its consequent principle of contractual freedom,with respect to the will and liberties, is also rooted in the principles of human rights.Contractual freedom has traditionally emphasized the negative side of freedom,namely the non-interference and sanctity of contracts.The positive aspect of freedoms is the emphasis on the free development of different aspects of personality that require intervention. The question is,can private autonomy be considered a positive aspect of freedom and prevent the exploitation of the parties? In a comparative study of German and British law, we will see that the principle of private autonomy,relying on the right to self-determination, is seen as positive aspect of contractual freedom, which is an important basis for upholding fundamental human rights in support of the weaker party and countering unfair conditions. In Iranian law,this principle can be extracted by means of principles that override the negative aspect of contractual freedom and limit the essential as necessary.

The increase in the strength of different enterprises due to economic developments in recent decades, has eliminated the equality in the bargaining power of the contracting parties specially in relationship between the bank and consumers, let alone consumer credit in our discussion, hence it caused an imbalance which is implied that the absolute reliance on the principle of contractual freedom and The Autonomy of Will or in other words in a manner that is strictly limited to the traditional rules of classical contract law does not necessarily entail Commutative justice in such contracts. in particular these contracts based on Article 23 of the Law on the Continued Improvement of the Business Environment are pre-prepared and offered to consumer without the possibility of altering. Thereupon to protect the "weaker party" along with using some common law doctrine such as "undue unfluence" and "unfairness doctrine" in order to cancel the contract or alter the contractual terms, which already there are some indications of utilization of those principles in our legal and regulatory system, The legislator can, by amending article 23 of the above mentioned law, prepare a flexible contractual situation for consumers in comparison with other banking customers, as the case may be.

Considering the large volume of claims regarding ordinary transactions in the legal courts of the country, we find that the existing laws do not have the capacity and effect that the parties have to deal with the contractual relations of individuals. Therefore, it should seek to define new criteria and standards  in contract relations with maintaining the principles governing contract law. studying the background of procedure in our country and analyzing the fundamentals of jurisprudence by offering Some examples of this kind of restrictions in Islamic thought - law is one of the purposes of this paper . although Registration Act 1346 must be considered the beginning of the rule, it has been shown that regulation has not been enough to prevent the development of such lawsuits and that by applying more effective mechanisms in the field of contracts such as the development of contracts that must be set up in formal documents and provide guarantees of effective implementation of the necessary platform to address existing challenges.

Among the various contracts, the contract of settlement has this unique feature due to its vast territory That the result of other contracts and compromises between persons can be drawn in its form without the specific provisions of those contracts should be in force within this framework. contract of settlement is a broader format than all nominate contracts that is provided for the realization of the rule of will and the Civil law refers to this in Articles 754 and 758. On the other hand, Article 10 of civil law has established a principle called the principle of freedom of contract, which has given the rule of will a wide scope and removed it from the confines of nominate contracts. The legislator intends to enact Article 10 to validate transactions that, despite the needs of society, in terms of the effects desired by the parties, do not fit into any of the nominate contracts. There has always been disagreement among jurists as to whether, despite the contract of settlement, Article 10 of civil law which Is adapted 1134 french civil law , was necessary or not? According to Professor Jafari Langroudi,Despite the contract of settlement and Articles 752 and 754 civil law, borrowing the meaning of Article 10 from Western law is superfluous and it should not be said that the principle of free will as extensive as stated in Article 10 has no precedent in jurisprudence, because the consideration of various types of contract of settlement and its documents in jurisprudence, which at the same time shows the implied scope of the provisions of the Civil Code in a contract of settlement is a living proof to the contrary. The present article is responsible for explaining the relationship between these two legal institutions by emphasizing the views of Professor Jafari Langroudi.

The contract is a vehicle for the transfer of wealth, and the law of contract is the responsibility of regulating this transfer. The contractual freedom principle forms the core of contract law. The principle of the free contract is Interdisciplinary principle that derives from economic and philosophical findings .Contract freedom can be the result of economic freedom in law. Accordingly, it is the duty of governments to only protection people's freedom in formation a contract, and governments should not interfere in the contract with which they contract with each other, as they do not interfere in the economy. But over time, the concept of government, the scope of its activities and duties in the community changed, and the government, while maintaining the duty to provide order and security, was responsible for social and economic duties and prosperity, and the concept of a welfare state arose. The goal of the welfare state is to maximize efficiency and maximize wealth, based on the market economy and private property. Private law institutions are also considered as factors influencing the market economy and the contract is a vehicle for the transfer of private property. But experience has proven that free trade does not always lead to maximum efficiency and prosperity, as it became apparent to all that market agents, due to individualist interest, have limited horizons and no awareness and interest in the public interest. Economists say that the conditions that a free market cannot fulfill their goals (efficiency and optimal allocation of resources) are referred to as market failures. In this situation, the government must intervene. Economists, monopoly, information asymmetry, external effect and ... are among the most important market failures. Private law in general and the law of contracts based government non-intervention did not have the means to deal with these conditions. Therefore, public order was the most important legal instrument available to government intervention in the contract and restrictions on contract freedoms, and the courts were able to invoke it without the approval of the new law. Public order evolved along with the role and function of the state in the economy. The interventionist government has also become a regulating government to pursue the best interests of the community with the tools of public law, pursuing economic policies that are best suited to protect the proper functioning of the market. In this way, the scope of the influence of the principle of contractual freedom and the results of this principle, such as the freedom to formation contracts, the freedom to determine conditions, and the freedom to choose the transaction side, were limited and limited, to the point where some scholars spoke of the fall of this principle. Economic public order is the product of the twentieth century studies has come under the influence of new attitudes to the law, and in particular the economic look into legal rules. The economic public order is based on state interference in the economy and has two major objectives, which are, respectively, to protection the poor and regulate of economic system. The guiding public order approach is to regulate the behavior of market actors in order to achieve maximum welfare and maximize wealth. Although the goal of this approach is the welfare of the community, it does not directly act contrary to the supportive order and is directly aimed at implementing the macroeconomic policies of the state. Economics from the legal system in a monopoly situation is expecting to confront this phenomenon. The legal system must not only lead the market to competitive conditions but also eliminate the monopoly formation. To this end, competition law has emerged as one of the branches of public economic order. While justifying the involvement of the government on the economic public order, in this paper, we tried to investigate the question of what the Iranian system of law in the conflict between monopolism and the principle of freedom of contract was adopted? Efficiency and optimal allocation of resources are considered to be the goals of economics, which in some cases the market will not be able to materialize and will be in short supply. Therefore, government intervention through regulation to regulate the economy and returning to the above objectives is necessary in these cases. Therefore, in many legal systems, the legislature seeks to compensate for these shortcomings by imposing laws contrary to accepted civil rights rules. Antitrust law and laws are set up for this purpose. In Iran, the legislator has also endorsed the Law on the Implementation of General Principles of Article 44 of the Constitution, the Law on the Protection of Consumers and the Law Electronic Laws. The legislator has to make a detailed study of the economic situation of the country, and to consider the economic situation of the country and not to translate the laws of other countries and to use foreign law to implement it with domestic law. Moreover, the freedom of the contract, despite the limitation of the scope, remains the legal principle that its constraints should be regarded as exceptional and only in cases of necessity referring to the exceptions. Consequently, it should be treated with the same sanction for contracts that are detrimental to the competition, because of the opposition to the economic public order, and on the terms and conditions that are in conflict with the contractual nature of the contract which are detrimental to the competition and, as a result, compromise the contract. In contrast, if the condition is not in conflict with the nature of the contract and the ability to distinguish it from the contract, it should only cancel the condition.

To protect workers and to ensure the minimum privileges and job securities for them, the Labor Bill was passed in the Islamic Consultative Assembly, and in numerous important cases, accepted the government's interference in the relationship between employee and employer and restricted the parties' will to conclude the contract. However, the Guardian Council considered mandatory the parties' agreement in labor contracts in accordance with the primary Sharia rule; even though that agreement didn’t predict minimum wage, vacations and holidays, insurance, severance pay and the like. Indeed, the review of the Guardian Council's comments in this regard indicates that the Council believed in contractual freedom as one of the original Islamic systems and considered its permanent change to be impossible. On the basis of this approach, the Islamic ruler and his agents can only temporarily violate these systems and avoid enforcing them on the basis of necessity and public interest until the removal of the impediments. This article seeks to evaluate the approach of the Guardian Council based on the contractual freedom from the economic perspective. The findings of this study indicate that based on the economic analysis, the Guardian Council's approach, more than that of the current Labor Law, has been to provide both worker and employer benefits and to improve the employment status.

One of the most important concerns of today's societies is the creation of ways to communicate and interact in transactions and contracts as much as possible. On the other hand, the contracts existed in ancient times (age of sharia), is limited to specific molds that using them at the present time will make the human life and the level of their interactions difficult. Therefore the liberty of Contract Principle which have a long history of trading, finds special significance. In order to prove the legitimacy of emerging contracts, jurists have abandoned various religious arguments. One of the most important reasons is; the verse 29 of Surah Nisa. In the present article, written in descriptive-analytical manner, the provisions and the words of this verse, the amount of implication and the mistakes that have been made against emerging contracts have been investigated. The research results indicate that the above verse implies the validity of new contracts and contracts.

It has got the common belief of western lawyers that the principle of the freedom of contract is the very realization of fundamental and philosophical principle : "Autonomy of Will" in legal world. This famous belief has however posed itself on considerable critics, some of which has denied the derivation of the freedom of contract from the principle: "Autonomy of Will". Some others doubted the importance of the freedom of contract for the principles of justice. Some others have notwithstanding admitting the very necessity of the freedom of contract, hesitated its inside for not being utile and must inevitably inject a suitable content for it in order to serve as a good, welfare and social justice. This article is to review these critics whose taking seriously, will lead us not necessarily to construe law's policy-based intervention in the freedom of contract as the denial of natural and constitutional principle: "Autonomy of Will".

Any condition being forced by stronger party of a contract to weak one which inevitably accepted relying on the authority of such stronger party, may be called an "Unfair Term". Although, typically, parties conclude a contract based on "the principle of autonomy of volition (will authority)" but absolute acceptance of such principle is not compatible with some objectivities nowadays. Thus, as a way of supporting vulnerable sectors of society, legal systems prevent abuse of great economy powers, and establish justice in society by intercepting such kind of conditions. Despite the necessity and importance of legislation, in Iran legal system, a general principle for treating unfair terms has not been formed yet but encountering of Iranian legislator with such terms in miscellaneous rules is worthy to be analysed and evaluated. Like, perhaps, any other civil law system, under Iran legal system, the bases for attacking unfair terms may be found within the context of limitation or exclusion of liability clauses and also general principles of contracts under the subjects of "consent" as well as the "purpose of transactions". Furthermore, judicial precedent may be able to support weak parties of contracts by generalization of what have been regulated for specific subjects regarding unfair terms to contracts in general. Despite all new conceptualization of this term, some clues of acceptance of it may be found in writings of Islamic Jurisprudents. Topics like "urgency to deal, forgiveness of lucre, satisfaction of transitions, counterparty deals, hardship in contracts" and what is known by jurisprudents as "equality in contract" may be helpful to achieve the jurisprudential basis for unfair term..

Traditionally, fundamental human rights have not played a role in private law, particularly in contract law. These rights have originally been established to prevent state violation of individual rights. However, the occurrence of unequal contractual relations among individuals and its consequences have led to debates concerning the necessity of recourse to fundamental rights in order to protect freedom of contract. The nucleus canon is whether it is possible to grant a fundamental character to contractual freedoms to prevent any kind of abuse of formal freedom of contract principle. By conducting an analytical-descriptive research method, this article aims to discuss comparatively the role of fundamental rights in the field of freedom of contract. It can be concluded that recourse to fundamental rights in dealing with freedom of contract has resulted in emergence of a substantial notion of contractual freedom and even in some cases have attributed fundamental position and status to the principle of freedom of contract.

The principle of sovereignty of will and contractual freedom states that individual's wills govern both the formation of contracts and the consequences thereof, and all legal relations. According to this principle stated in Iran's Civil Code, Art. 10, uncertain (untitled) contracts the principle of freedom of contract is declared in most of legal systems and international commercial instruments. The first article of "principles of European contract law (PECL) (2002) declares that Parties are free to enter into a contract and to determine its contents….Beside this article the theory of The necessity of the rational, fair with good faith governance in limiting freedom of contracts in international commercial contracts" with the other international principles could complete international law and It supplements the provisions of the Principles, and it may take precedence over other provisions of these Principles when a strict adherence to them would lead to a manifestly unjust result.
The result of the theory is that the principle of good faith and fair dealing must be respectful for governments in their sovereignty so governments mustn’t inter the contract for their own personal political goals and purposes or by irrationally legislation such as article 968 of Iranian civil code or article 477 of Iranian criminal procedures code harm merchants.

One of the principles dominating the private contracts between individuals is the principle of the supremacy of will or the liberty of contract. This principle is considered as one of the main discussions of the contract law. According to this principle, the contracting parties are free in choosing the other party of the contract as well as the shape, form, amount, and conditions of the contract, lest limited by law, good behavior, or public order. Although the shape and form of some contracts have been specified in the civil code, the contracting parties can draw upon the liberty of contract principle to choose a form and shape other than the fixed contract. Article 10of the civil code of the Islamic Republic of Iran is the main supporter of the liberty of contract principle. Regarding the Islamic law, the jurisprudents have extracted numerous proofs and arguments from the Islamic traditions and texts and have introduced them as the principles of the liberty of contract

Deep economic and social developments in two recent centuries beside other important alterations, created important changes in contracting aria among them placing weak and strong parties against each other in contracts. Freedom of contract, that before enjoided from some kind of sancity,could not provid contractual justice in this new conditions. Therefore adjustment of this tool(contract) in a manner that can serve to the justice felt nessesry.in foreign law primarily it was courts that became pioneer in this way and used interpretation technics and general principles of contracts to protection of weak parties against harsh contract terms. But gradually Legislative interventions felt necessary.then legislators enacted regulations that limits principle of freedom of contract in varios areas in order to protect weak parties and for the benefit of contractual justice. Legislative control, in recent 50 years, concentrated on protection of consumers and consumers were the biggest weak parties groupe that protectional umbrella of legislation surrounded them.

To understand the principle of freedom of contract and its moral basis as well as its source in our jurisprudence and law, we must not seek this principle in jurisprudential texts. The examination of moral principle shows that the principle is embedded in its concept. These rules are freedom of contract formation and freedom of forms. This paper just argues that the most important rule set forth in the principle of freedom of contract means freedom of forms because of the extension of subject. By exploring verses, reports, Jurisprudential and legal sources, it can be stated that the rule of freedom of forms embedded in the principle of freedom of contract is rooted in moral principles, such as general principle of loyalty to the covenant and compliance of action with intent that entered into legal system in the form of freedom of contract principle after being adjusted and reformed.