سلطة القاضي التقديرية إزاء الشرط التعسفي في التأمين : ماهيتها و نطاقها-دراسة مقارنة

الملخص EN

On one hand, we have endeavored in the Article to clarify what the concept of the judge's discretionary power means.

On the other hand, we addressed the concept of arbitrary condition shedding light on the jurisprudential controversy over the existence or non-existence of a discretionary power for the judge at the outset.

Furthermore, we have tackled the court of cassation's censorship on the conclusions of implementing the discretionary power of the judge.

As concerning the arbitrary condition, we have examined its definition and elements.

The most significant threshold we have tried to articulate is represented by the scope of the judge's discretionary power towards the arbitrary condition in insurance.

As it is obvious, the contract of insurance, as the vast majority of jurists have adopted, is typical for the contracts of compliance.

The arbitrary condition in the compliance contracts has a statutory rule represented by the judge's capability of either amending it or exempting the compliant from it.

In the meanwhile, it has been concluded that the arbitrary condition in insurance has a special legal rule which is the nullification when it becomes clear that there is no effect for its breach on an accident being taken place.

In conclusion, there are two kinds of arbitrary condition in insurance : the first one is a null condition since its breach does not have any effect on an accident being taken place.

The second one is a true condition once it has been proved that there is no effect for its breach on the accident being taken place.

Therefore, it has been concluded that double-standards in dealing with the arbitrary condition is problematic.