اختلال التوازن العقدي الناجم عن الشروط التعسفية
نور الدين طارق توفيق رجبي
Nouraldin Tareq Tawfik Ragabi
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.