Iraj Babaei; Abbas Toosi; Morteza Torabi
Abstract
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 ...
Read More
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.
mortaza hajipour
Abstract
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 ...
Read More
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.
Sam Mohammadi; Mehdi Fallah
Abstract
To understand the principle of freedom of contract and its moral basis as well asits source in our jurisprudence and law, we must not seek this principle injurisprudential texts. The examination of moral principle shows that theprinciple is embedded in its concept. These rules are freedom of contractformation ...
Read More
To understand the principle of freedom of contract and its moral basis as well asits source in our jurisprudence and law, we must not seek this principle injurisprudential texts. The examination of moral principle shows that theprinciple is embedded in its concept. These rules are freedom of contractformation and freedom of forms. This paper just argues that the most importantrule set forth in the principle of freedom of contract means freedom of formsbecause of the extension of subject. By exploring verses, reports, Jurisprudentialand legal sources, it can be stated that the rule of freedom of forms embedded inthe principle of freedom of contract is rooted in moral principles, such asgeneral principle of loyalty to the covenant and compliance of action with intentthat entered into legal system in the form of freedom of contract principle afterbeing adjusted and reformed.
