الجيلاتين الحيواني واستخداماته المعاصرة دارسة فقهية
Date
2020-06-14
Authors
أسامة إبراهيم محمد حمد
Osama Ibrahim Mohamed Hamad
Journal Title
Journal ISSN
Volume Title
Publisher
Al-Quds University
Abstract
The subject of the contractual imbalance resulting from arbitrary terms and
conditions is one of the most crucial and essential arguments in law, because of the
negative impact it has on the freedom of contracting, where the weak party in the contract
is rendered at the mercy of the more powerful party, and as the scope of arbitrary
conditions is no longer limited to the contract of acquiescence, but has also extended to all
contracts; consensual or formal, resulting in a glaring imbalance between contractors.
This study included an elaboration on the definition of contractual imbalance
resulting from arbitrary conditions, and the legal guarantees to protect against arbitrary
conditions. The study has reached several conclusions, the most notable of which is: the
arbitrary condition is a valid condition and is not limited and not specified by a specific
text, and the civil laws did not address the theory of submission, also limited to providing
protection to the vulnerable under modern contracts. The general traditional theories
contained in civil law do not constitute effective and independent legal protection to
achieve the contractual balance between the parties under arbitrary conditions, nor is it
permissible that the judge may intervene to restore the contractual balance between the
parties to the contract without legal basis. The Palestinian legislator has addressed the
phenomenon of arbitrary conditions through the Palestinian Consumer Protection Act in
article (23), yet, to date, it has not fulfilled what was approved by the above article.
In the light of the study results, some recommendations were made, the most
important of which were: the need to enact special provisions that address the issue of
arbitrary conditions without being satisfied with the general rules contained in the Civil
Law, taking into account the interests of both the weak and the more powerful party
without prejudice to either of them, as well as the need to grant the trial judge expanded
powers to Urge in the arbitrary conditions contained in the contracts, and work to find
specialized actors and effective means within the Consumer Protection Act to ensure the
reduction of the phenomenon of arbitrary conditions.