THE JUDGE AND UNFAIR TERMS: AN OVERVIEW OF ALGERIAN AND FRENCH LAW

Abstract

A contract is primarily controlled by the Biding Force of contract which states that a contract cannot be canceled or modified unless the parties to the contract agree in writing, thus the contract is primarily protected against external interference. Nevertheless, Algerian and French lawmakers have entrusted the judiciary with broad discretionary powers to protect the weaker contracting party through the regulation of unfair contract terms, a means of promoting contractual balance and protecting parties in a vulnerable position in a contractual relationship. This judicial authority derives from civil law principles and legislative statutes giving the judges the discretion to revise or declare unconscionable those clauses that are demonstrated to create a manifest imbalance in contractual obligations.

The efficacy of this judicial intervention, nonetheless, depends considerably on the lucidity of statutory provisions outlining the scope and standards of judicial supervision. In certain cases, uncertainties in the legal system may create conflicting judicial interpretations, thus lowering the degree of protection for the aggrieved party. As a result, the need for legislative reform has grown clearer, calling for the creation of objective and specific legal standards that delineate the limits of judicial power while protecting contractual justice without derogating from the principle of transactional stability..