خلاصة:
In recent decades, several new terms have been increasingly used in the laws and rules of Arab countries, all of which somehow indicate the unfairness of the contract (either in the nature of the contract or in the terms of the contract). One of these terms is “unfair condition.” The most important feature of unfair (taʻasufī) conditions is the exploitation and abuse of the external or internal weakness of the weak party. Iranian law has addressed the imposed or unfair conditions with delay and in a more limited way. Unfair condition is not mentioned in any jurisprudential sources, but it is possible to analyze it based on jurisprudential sources. There are two possibilities in refutation and the need to adjust the unfair condition: the correctness and refutation approach. Contractual freedom and the validity of contracts, the principle of validity and the non-inclusion of an unfair condition among refutation conditions are the evidence of the first possibility. Entering into the conditions contrary to the Holy Qurʼān and the Sunnah, the principle of justice and fairness, the prohibition of disorder in the system, the forbidding the uncertain (gharar), the forbidding of consuming property wrongfully, and the unity of the criteria with similar subjects such as al-Bayʻ ʻalā al-Bayʻ, al-Sawm ʻalā al-Sawm, Najsh and Talaqqā al-Rukbān are evidence of the second possibility. In case of refutation of an unfair condition, it is possible to dictate the possibility of termination or modification of the contract in favour of the weaker party.
ملخص الجهاز:
Research Article Feasibility of Invalidating "Unconscionable Clauses" Based on Imami Jurisprudence Sources 1 Mehdi Moftakhari PhD student in Private Law, Islamic Azad University, Mashhad Branch; Mashhad-Iran.
Keywords: unconscionable clause, unfair terms, najash, talqi al-rukban, adhesion contract, laws of Arab countries.
Two aspects make the present research distinguished from the aforementioned studies: first, presenting the subject from the perspective of the laws of Arab countries, which, like us, are influenced by Islamic jurisprudence in the foundations and sources of their legal systems; and second, addressing the subject more deeply through relevant jurisprudential entries.
(The jurisprudential discussion is only in three pages within the rules of la darar and idtirar); Unfair terms in consumer contracts, (Shamsollahi): Quarterly of Private Law Research, No. 25, 1397 SH.
The most comprehensive of all definitions is that an unconscionable clause is a clause that, in terms of substance, causes a disruption in the transactional equilibrium, and one party to the contract, by exploiting the weakness of the other party, imposes their unfair conditions upon them.
Some authors, to confront unconscionable clauses and protect the weaker party in such contracts, have turned to other rules in addition to the defects of will, which are analytically and sometimes acceptably viable from a legal doctrine perspective, but have not received much attention or popularity in the aforementioned laws of Arab countries (Ahmadzadeh, 1397, 23).
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