چکیده:
accessory contracts. It also studies unjust and accessory contracts and the status of unfair conditions and extent validity of such conditions in them. Based on the Principle of “freedom of will”, the contracting parties conclude the accessory contracts. Considering the above principle, the present research responds to the following question: What is the necessity that Iranian legislator and the court should interfere with contracts that include unjust condition and how to deal with such conditions? In the above contracts, professional producers, dealers and suppliers of goods and services impose unjust conditions on weak party who lacks bargaining power. Inequality in distribution of information accompanied by situations of the person and market may lead to inequality of bargaining power between parties to a contract. This subject has not been studied in Iranian legal system. The author of the present research first reviewed the literature of protection from the weak party in contracts in Imamieh jurisprudence and gave some legal and observable manifestations of such protection according to basic resources in Islamic jurisprudence and legal provisions of common law countries. Then the author surveyed protective methods and measures in Imamieh jurisprudence and Iranian legal system. The base of protection from weak party in Islamic jurisprudence originating from some rules such as rule of prohibition of detriment that removes the necessity of concluding the contract to protect from the weak party and provides them with option of repudiation of contract or performing it. Moreover, other rules have been studied such as rule of denial of distress and restriction and rule of equity that are proper bases in balancing imposed contracts and unjust conditions mentioned in them. Finally, the present research dealt with special examples of protection from weak party in customary law countries to complete the discussion. Such countries toke a giant step to protect weak party and fight against unjust conditions. In this regard, Iranian legislator toke some measures such as approving the Iranian Act of Protection from Customer’s Rights 2009 and some scattered legal Articles.
خلاصه ماشینی:
The author of the present research first reviewed the literature of protection from the weak party in contracts in Imamieh jurisprudence and gave some legal and observable manifestations of such protection according to basic resources in Islamic jurisprudence and legal provisions of common law countries.
Weak party; unjust conditions; accessory contracts Introduction One of the issues posed in the area of private law is the breach of efficiency and function of a contract and securing justice and denial of its mythical function in securing bilateral interest.
The hypothesis presented in this research goes as follows: There is a Principle called Principle of freedom of will in contracts and allows every person to accept and create every contract with every condition in the shadows of agreements unless it is in the contrary of public order, good policy and imperative law.
However, in accessory contracts, the contents are prepared according to the opinion and conscious of their providers but their real bases and foundations of their creation and conclusions are social and economic policies; 4- Form contracts are mainly concluded by commercial trade unions, international organizations and companies who seek to make a real balance between rights and obligations of contracting parties.
Article 3 of Guideline of European Council EEC/13/93 defines unjust conditions as: “Every condition about which contracting parties did not negotiate is against the principle of good will and its application causes an imbalance between rights, covenants, loss and damages of consumer.