سلطة القاضي في تعديل مضمون العقد بسبب الاستغلال المصحوب بالغبن الفاحش

الملخص EN

The contract represents the most important legal means linking individuals in their transactions.

It is based on the principle of the power of the will, which is the basis for the establishment and implementation phases.

The rights and obligations agreed upon by the parties are increased or decreased only by contracting the parties’ mutual agreement.

However, the formation or implementation of the contract may interfere with economic, social and political circumstances that the parties did not expect during the formation or conclusion of the contract.

This leads to economic imbalance which, in turn, leads the parties, the legislator and the judge to seek a means to reorganize the contract and ensure its economic balance, whether through the intervention of the legislator or through agreement of the parties or the judge by means of limitation or addition to maintain the contract as in the case of gross injustice.

The study aimed to shed light on the extent of the judge’s authority and the fact that he should play a positive role in order to achieve contractual justice, prevent harm to one of its parties and try to root out some circulating concepts or theories such as injustice and exploitation and the extent of the judge’s authority to modify the economic balance of the contract.

The study ended with some results, the most important of which are: the injustice is not limited to inequality between the contractual obligations but the will of the grieved contractor as well as the intent of the oppressor contractor are examined.

The UAE legislator does not consider the injustice unless it is extravagant and accompanied with cheating, except in specific exceptional cases.

The study concluded with several recommendations including the following: the UAE legislator shall provide for the defect of exploitation within the scope of the defects of the will in the Civil Transactions Act and shall search other cases to protect the grieved party in the contract other than clear inconsideration or ungovernable passion.