تطور دور القاضي في تفسير "قانون العقد" و إشكاليات التطبيق؟ : حالة : سلطة القاضي في تعديل العقد بفعل نظرية الظروف الطارئة

Abstract EN

This research deals with an important subject which is the legal power and authority of the judge in modifying the civil contracts, it is well known that the role of the judiciary is the application, elucidation and interpretation of the law, similarly on the other hand it is known that all aspects in the legal contracts are applicable and mandatory for all its parties.

This research illustrates the authority of the judiciary and when it overlaps the authority of the contractors, by implementing any kind or different means of amendments to the original legal contract.

After the statement of the traditional role of the judge in the application and interpretation of the law, we moved to the wider and broader role of his authorities which is the official ability to amend the contract.

This ability took place by using two major pathways: the first one is executed without the presence of exceptional circumstances.

i.e.

through the interpretation of the legal aspects of the contract and/or through the legal conditioning clauses of the contract.

The second one is implemented by the provisions of the law that allow the judiciary to modify the contract in case of exceptional circumstances and this is so-called “theory of emergency conditions”.

We discuss different aspect of this theory, such as its conditions, its legislative formulation and its role in influencing the amendment to the contract through the judge’s authority as well as some obstacles and complications which have been raised in the practical application of this theory.

In fact this theory represents the buffer point between the formulation of the rigid law and the floppy assumptions which is required by the concrete reality, it also seeks to reconcile the elements of stability and movement in term of the right theoretical understanding and good practical application of laws and legislation.