The impact of unfairness on the contractual balance in the amended French Civil Code-A comparative study with the Iraqi civil law and Islamic jurisprudence

Abstract

ABSTRACT

Unfairness is the lack of equality between financial performances and the non-achievement of the economic benefit of the contract. The new amendment to the French civil law did not consider unfairness a defect of will, and therefore does not lead to the suspension of the contract’s enforcement on the approval of the other contract, and does not cause the contract to be invalid because it is considered an objective defect, which is the most correct in jurisprudence. Islamic and Iraqi Civil Law, However, contrary to the general rules, the Iraqi legislator arranged in (Article 123) the minor injustice to compensate the other contracting party. (Article 1168) of the amended French Civil Code focused on the result, which is the imbalance between the corresponding payments at the moment of concluding the contract without extending to the causes of this imbalance. Unfairness is a defect of the will, as it causes the relative invalidity of the contract, and it is the ruling on which the most likely opinions are in Islamic jurisprudence. (Article 1131) of the new amendment to the French Civil Code considered that deception alone is a reason for the relative invalidity of the contract, because fraud spoils everything, contrary to what came in Islamic jurisprudence and Iraqi civil law, and that deception alone does not cause the contract to be suspended or not necessary unless If it results in unfairness (i.e. damage). If the exploitation results in injustice, the judge raises the injustice to a reasonable limit, except that the French legislator entails the relative invalidity of the contract, which is the position of Islamic jurisprudence, as the contract is not binding if the exploitation results in injustice. Accordingly, we recommend the Iraqi legislator to regulate the provisions of injustice and exploitation independently of the defects of will and to explain their impact on the contractual balance and how to treat it to restore balance to the contract, and not to arrange compensation for minor injustice in the contract and to cancel the ruling on compensation that he ruled in (Article 123), so there is no justification for imposing it.