السلطة التقديرية للقاضي في حماية الطرف الضعيف في العقد

الملخص EN

The Iraqi legislator granted the judge discretion in protecting the weak party in the contract and rebalancing contual, as the judge intervenes when contractors agree upon determining the penalty in advance and applying it when one of them violates his obligation, the judge will intervene by amending the increase or decrease, as the economic and social goal of the contract requires proportionality between corresponding performances, and he is not have the authority to interfere in determining non-material matters in the contract for acceptance in the substantive and minor relating to contract details, the two contractors may leave some detailed issues for agreement later, and then a dispute occurs between them, so the judge intervenes to complete the contract, this is by defining its scope, the nature of the contract, and the judge interferes that is guided and represented by law, custom and justice weak contraction from the arbitrary requirement imposed by a strong contractor to achieve an obscene advantage over calculating the less qualified and experienced, judge removes the arbitrary clause, and he intervenes when the emergency occurs musing his discretion to reduce the onerous obligation or termination of the contract.