نوع مقاله : مقاله پژوهشی
1 دانشیار دانشگاه شهید مطهری
2 استاد دانشگاه پیام نور
3 دانشجوی دکتری حقوق خصوصی دانشگاه پیام نور
عنوان مقاله [English]
Validation of the unconscionable (imposed) conditions is the examination of a new form of contracts in which one party has superior or exclusive powers that prepare the terms and conditions of the contract and the other party is forced to accept it without having the right to negotiate. The current research investigates the nature, basis and validity of unconscionable conditions in these types of contracts by comparative-analytical method. The findings show that some of the unconscionable conditions do not have the attribute of unconscionable, therefore they are valid. Egypt’s legislator in Article 149 of the Civil Code legislates for conditions and unconscionable exposed contracts: “... The judge can equate the contracts containing unconscionable conditions or exempt the weak party from their implementation...”. Some jurisprudential rules in Islamic jurisprudence and legal principles in Iranian law have such capacity that they can be considered as evidences of support for the weak side of the contract in these types of contracts. In addition, Iran’s legislator has shown a willingness to support the weak side by enacting some legal articles. If the imposed conditions are unconscionable, judges can also equate (amend) them by using accepted jurisprudential rules and legal principles and therefore, it is inevitable to anticipate the legal provision in Iranian civil law in order to prevent the issuance of different judgments in this regard.