Judicial Amendment of the Contract
DOI:
https://doi.org/10.35246/9zqfq466Keywords:
Amendment, Contract, JudiciaryAbstract
be proven, as man is a social being who cannot live alone, and therefore there is no dispute about his inability to meet his needs by himself. This exchange of benefits takes place through a legal means called (contract). Everything we obtain today of basic needs for the purpose of securing living, housing, trade and exchanging experiences is done through one path, which is the agreement that may be made between its parties directly or through an intermediary.
Contracts differ in terms of importance. What we derive from the contract through meeting our simple needs does not raise any problems, and we do not suffer from the difference in the circumstances in which it arose, considering that its implementation takes place at a single moment in time.
However, large and continuously implemented contracts, which may take a long time to achieve the interests of their parties, may be subject to some force majeure circumstances that were not expected to occur, and none of them prepared themselves to confront them and adapt to them, which puts them in front of a huge and burdensome loss, which necessitates restoring the economic balance of the contract.
Restoring the economic balance of the contract should not be left to the will of its parties, but rather the judiciary should undertake this by granting it discretionary authority in light of which it moves to reduce the severity of the burden that has been inflicted on the debtor, even if not completely, but in the manner that he can bear under normal. Manner that he can bear under normal circumstances
Accepting this intervention was not easy in light of the dominance of the principles of the authority of the will and the binding force of the contract, as the convergence of the two wills on the establishment of the contract was considered a law that must be respected, and no amendments to it were made regardless of the circumstances facing its contracting parties. However, social, economic and political developments did not take long to change this firm conviction of the strength of the will and its opposition to any amendment to the contract. Legislation responded to the principle of the judge's intervention in restoring the economic balance of the contract if its parties faced exceptional circumstances that made the implementation of the contract burdensome for the debtor and he faced a huge loss as a result. Or if the agreed compensation estimated by the contract.
ting parties was exorbitant, or if the contract included arbitrary conditions that the weak party in it could not bear, which necessitated the intervention of the judiciary to amend or exempt from them.
Downloads
References
First: Legal Literature
I. Dr. Ahmed Heshmat Abousteit, Theory of Obligation in Egyptian Civil Law, Misr Press, Cairo, 1945.
II. Dr. Pierre Émile Tobia, Deception in Contract Execution - A Comparative Study, 1st ed., Modern Book Institution, Lebanon, 2018.
III. Dr. George Al-Ahmar, Notice in the Context of Contract Termination for Non-Performance, 1st ed., Modern Book Institution, Lebanon, 2018.
IV. Dr. George Al-Ahmar, The Existence of the Penalty Clause, 1st ed., Modern Book Institution, Lebanon, 2019.
V. J. S. Chicher and Others, Contractual Breach Sanctions, translated by Henry Riyad, Dar Al-Jeel, Beirut, 1982.
VI. Dr. Hassan Soufi Abu Talib, History of Legal and Social Systems, Arab Renaissance House, Cairo University Press & University Book, 1984.
VII. Dr. Hassan Kira, Introduction to Law, Monshaat Al-Maaref, Alexandria, 2014.
VIII. Khawla Bouraoui, Judicial Modification of the Contract, 1st ed., Al-Atrash Complex for Publishing and Distribution, Tunisia, 2021.
IX. Dr. Suleiman Marqous, The Comprehensive Explanation of Civil Law – Contract Theory and Unilateral Will, 5th ed., Legal Publications - Sader, Beirut, (No publication year).
X. Dr. Aayed Fayad Abdel Fattah Aayed, Contract Modification by Unilateral Will, Legal Books House, Egypt, 2010.
XI. Dr. Abdel Hamid Foda, The Principle of Willpower Between Roman Law and Islamic Jurisprudence – PhD Thesis, Cairo, 1996.
XII. Dr. Abdel Hakim Foda, Contract Interpretation in Egyptian and Comparative Civil Law, Monshaat Al-Maaref, Alexandria, 2016.
XIII. Dr. Abdel Razzaq Al-Sanhouri, The Mediator in the Explanation of Egyptian Civil Law – Volume One – The Theory of Obligation in General, Sources of Obligation, Hachette Legal Publications, Beirut, 2011.
XIV. Dr. Abdel Razzaq Al-Sanhouri, Explanation of Egyptian Civil Law – Volume Two – Effects of Obligation, Hachette Legal Publications, Beirut, 2011.
XV. Dr. Abdel Razzaq Al-Sanhouri, Dr. Ahmed Heshmat Abousteit, Principles of Law, Dar Al-Fikr Al-Arabi, Cairo, 1979.
XVI. Dr. Abdel Majid Al-Hakim, Summary Explanation of Civil Law – Volume 2 – Provisions of Obligation, Legal Library, Baghdad.
XVII. Dr. Mohamed Al-Saeed Roshdy, Unforgivable Error (Gross Misconduct), University Thought House, Alexandria, 2014.
XVIII. Dr. Mohamed Hussein Qasim, French Contract Law in Arabic, 1st ed., Hachette Legal Publications, Beirut, 2018.
XIX. Dr. Mustafa Al-Awji, Civil Law – Volume 1 – The Contract with an Introduction to Civil Obligations, Yahya Publishing & Distribution House, Beirut, 1995.
XX. Dr. Munther Al-Fadl, General Theory of Obligations, Dar Al-Thaqafa for Publishing & Distribution, Jordan, 1995.
XXI. Lufta Hamil Al-Ajeeli, Studies in Civil Law – Volume 2, 1st ed., Zain Legal Publications, Beirut, 2018.
Second: Islamic Jurisprudence Books
• Sheikh Zain Al-Abidin bin Ibrahim bin Najim, Al-Ashbah wa Al-Nazair on the Hanafi School, Dar Al-Kutub Al-Ilmiyyah, Beirut, 1985.
Third: Research Papers
I. Dr. Osayd Hassan Al-Dhunibat, Public Order and Its Application Challenges in the Jordanian Civil Law on Insurance, Jordanian Journal of Legal and Political Sciences, Vol. (12), No. (13), Year 2020.
II. Amin Youssef Hamdan, Nominal and Insignificant Price, published article on the website https://egyls.com, accessed on 05/02/2025.
III. Khalil Ibrahim Khalifa, Can the Court Modify a Contract That Contravenes Public Order?, Justice Journal, Issue 1 – Sixth Year, 1980.
IV. Shami Yassin, Liqa Abdul Ali, The Role of Public Order in Achieving Contractual Justice, Algerian Journal of Law and Political Sciences, Vol. (6), No. (1), Year 2020.
V. Dr. Saleh Nasser Al-Tabtibi, Judicial Intervention in Modifying Unfair Terms in Adhesion Contracts – A Comparative Study, Legal Journal, Issue 15, published on the website https://www.legalaffairs.gov.bh/QTopics/Q15T0, accessed on 09/02/2025.
VI. Dr. Abdel Hay Hijazi, The Impact of Economic and Social Factors on the Contract, Judiciary and Law Journal, Second Year, Issue (1), Kuwait, 1971.
Fourth: Legal Codes
I. French Civil Code of 1804.
II. Tunisian Code of Contracts and Obligations, 1906.
III. Lebanese Code of Obligations and Contracts No. (46/L) of 1932.
IV. Egyptian Civil Code No. (131) of 1948.
V. Iraqi Civil Code No. (40) of 1951.
Downloads
Published
Issue
Section
License
This work is licensed under a Creative Commons Attribution 4.0 International License.
Copyright and Licensing:
For all articles published in Journal of Legal Sciences, copyright is retained by the authors. Articles are licensed under an open access Creative Commons CC BY 4.0 license, meaning that anyone may download and read the paper for free. In addition, the article may be reused and quoted provided that the original published version is cited. These conditions allow for maximum use and exposure of the work.
Reproducing Published Material from other Publishers: It is absolutely essential that authors obtain permission to reproduce any published material (figures, schemes, tables or any extract of a text) which does not fall into the public domain, or for which they do not hold the copyright. Permission should be requested by the authors from the copyrightholder (usually the Publisher, please refer to the imprint of the individual publications to identify the copyrightholder).
Permission is required for: Your own works published by other Publishers and for which you did not retain copyright.
Substantial extracts from anyones' works or a series of works.
Use of Tables, Graphs, Charts, Schemes and Artworks if they are unaltered or slightly modified.
Photographs for which you do not hold copyright.
Permission is not required for: Reconstruction of your own table with data already published elsewhere. Please notice that in this case you must cite the source of the data in the form of either "Data from..." or "Adapted from...".
Reasonably short quotes are considered fair use and therefore do not require permission.
Graphs, Charts, Schemes and Artworks that are completely redrawn by the authors and significantly changed beyond recognition do not require permission.
Obtaining Permission
In order to avoid unnecessary delays in the publication process, you should start obtaining permissions as early as possible. If in any doubt about the copyright, apply for permission. Journal of Legal Sciences cannot publish material from other publications without permission.
The copyright holder may give you instructions on the form of acknowledgement to be followed; otherwise follow the style: "Reproduced with permission from [author], [book/journal title]; published by [publisher], [year].' at the end of the caption of the Table, Figure or Scheme.
