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 ...
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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.
Morteza Adel; Mohsen Shamsollahi
Abstract
Nowadays, the increase in using the contracts in which one party has a stronger position against the weaker party provides the stronger party a possibility to insert some unfair terms in contract. In recent years, some countries have tried to enact some legislation to protect the weaker party against ...
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Nowadays, the increase in using the contracts in which one party has a stronger position against the weaker party provides the stronger party a possibility to insert some unfair terms in contract. In recent years, some countries have tried to enact some legislation to protect the weaker party against such terms. This Article examines comparatively regulations on unfair contract terms in EU in order to consider its historical development, what an unfair contract term is and why the weaker party should be protected against such terms. General contract rules and some special protective Acts that have been adopted in recent years in Iranian law arises the question of how the protection of weaker party considers, especially consumers, against unfair contract terms. Our view is that although general rules and special acts, to some extent, protect the weaker party against unfair terms, it is necessary to enact new protective Acts for the purpose of full protection of consumers against these terms .
abbas asadi; Mohammad bagher parsapour
Abstract
Today, basic or fundamental rights apply, not only in relationships between states and private parties, but also in relationships between private parties themselves, including contractual relationships between private parties. Fundamental rights are often used in contract law in order to protect ...
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Today, basic or fundamental rights apply, not only in relationships between states and private parties, but also in relationships between private parties themselves, including contractual relationships between private parties. Fundamental rights are often used in contract law in order to protect the weaker party in the contract. There are methods that can protect the weaker party by using Fundamental rights. These methods consist of: Direct horizontal effect and indirect horizontal effect. The latter divides into two methods: Strong indirect horizontal effect and weak indirect horizontal methods. This article considers manner of protection of the weaker party through Fundamental rights in labour contracts, family suretyship contracts and unfair contractual terms. By using above-mentioned methods in these contracts and unfair contractual terms, suitable solutions for the protection of the weaker party can be presented. For example, in the light of Fundamental rights, manifestly excessive penalty clauses and unfair family suretyship contracts can be null and void. It can also protect labours against unfair contractual terms, in labour contracts, such as non-competition clauses.
Ebrahim Taghizadeh; Afshin Ahmadi
Volume 3, Issue 10 , March 2015, , Pages 9-42
Abstract
In European law and Common Law, on the basis of consumer protection, unfaircontractual terms are subject to specific regulation. In domestic law, lack ofsuch regulation can clearly be observed. According to general principles ofcontract law, these terms seem to be valid. As far as article “46” ...
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In European law and Common Law, on the basis of consumer protection, unfaircontractual terms are subject to specific regulation. In domestic law, lack ofsuch regulation can clearly be observed. According to general principles ofcontract law, these terms seem to be valid. As far as article “46” of ElectronicCommerce Act of I.R.Iran is concerned, unfair terms, which are harmful toconsumers, are not effective. Nevertheless, due to the specific and protectivebasis of E-consumers, this provision does not apply to other cases, andtherefore, it is not possible to refer to fairness under any rubric due to the lackof enforceability. In addition, although the principle of freedom of contract, thetheory of the ‘will’ parties and the necessity of contract indicate the validity ofthese terms, judges, in litigation, could deal with dispute resolution based onfairness. The Unfair Terms in Consumer Contracts Directive 93/13/EEC isEuropean Union Directive (then called European Economic CommunityDirective) which governs the use of surprising or onerous terms used in order todeal with consumers
