تصحيح العقد الإلكتروني يمنحه الاستقرار

الملخص EN

Since nullity is the penalty for breach of the law, there is no legal effect for contractors and non-contractors, and the parties revert to their pre-contract situation, the provisions of nullity differ according to the legal rule that the breach of the contract entails.

If it protects a public interest, nullity and hence a contract is as absolute, as nullity.

If it protects a private interest, the contract is subject to avoidance, both of which produce effects that prevent the contract from achieving the aim for which it was concluded and may even ruin this aim, hence the rectification of the contract takes priority than avoiding it.

Rectifying a defective contract is done in two ways, either leave or prescription, or by changing an element of the contract by replacing the element in which the defect occurred.

The remedy is on the first track after the defect has been discovered and does not result in its disappearance.

The second is by replacing the defective element with another that replaces it and is consistent with the intent in the part in which the defect occurred and results in the removal and elimination of the defect.

What we are referring to here and which is the aim of correcting the contract is to correct the will and not to nullify it, excluding mistake of what is in the contract, the subjective place, the quality or the cause of the obligation, as well as of the error of expression of will, in which the contractor expresses a will that is mistakenly believed to be expressing its true will while contravening it, "an apparent will that contradicts subservient will." Contract relations may take place only through voluntary agreements, so the principle of the authority of will and the corresponding principle of "let it pass," i.e., contract without restrictions, is recognized as opposed to the modification of unequal obligations in unbalanced contracts.

It can even be said that these principles vanishes in the face of the imperatives of maintaining the contractual balance and the stability of economic relations.

As the electronic contract approaches contracts of submission, the weak party, the consumer, has been given the right to modify or remove the arbitrary term without denying the contract, in order to strengthen its position and restore the contractual balance between the two parties of the contractual relationship.