A comparative study of the basics, methods and limits of judges ' involvement in private contracts

Document Type : Original Article

Authors

1 Ebrahimi, Sara Ph.D Candidate، private law,Payame Noor University

2 PhD in Private Law, , Associate Professor, Faculty of Law, Payam Noor University, Tehran, Iran

3 PhD in Private Law, Assistant Professor, Faculty of Law, Payam Noor University, Tehran

Abstract

One of the main challenges in contract law is the issue of the possibility and basis of the intervention of judges in private contracts. In Iran's legal system, which is based on traditional principles, there is doubt about the involvement of judges, but in modern legal systems, it is based on the acceptance of emerging legal principles such as the principle of good faith and the principle of economic efficiency. The grounds for granting these powers have been prepared, but after the recognition of this authority, countless questions are still raised about the method and framework of exercising this right. .

The present research shows with a descriptive and analytical comparative study that the exercise of this right by judges is done in a special way in every legal system, but the granting of jurisdiction without limits will lead to a corrupt sequence.Therefore, it is suggested not to be satisfied with theorizing, and in order to create general rules by following the example of some modern legal systems such as France, we should review and amend the laws in the legal system, and in this way by clearly determining the methods of interference such as interpretation, adjustment, completion in cases Specially defined in the laws based on the emerging legal principles, free the judges from doubt and specify the criteria of their use for judicial intervention with imperative rules .

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Legal Research

Articles in Press, Accepted Manuscript
Available Online from 21 January 2024

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History

  • Receive Date: 18 September 2023
  • Revise Date: 31 October 2023
  • Accept Date: 21 January 2024

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