پژوهشنامه حقوق اسلامی (Nov 2016)
The necessity of the rational, fair with good faith governance in limiting freedom of contracts in international commercial contracts
Abstract
The principle of sovereignty of will and contractual freedom states that individuals' wills govern both the formation of contracts and the consequences thereof, and all legal relations. According to this principle stated in Iran's Civil Code, Art. 10, uncertain (untitled) contracts the principle of freedom of contract is declared in most of legal systems and international commercial instruments. The first article of "principles of European contract law (PECL) (2002) declares that Parties are free to enter into a contract and to determine its contents….Beside this article the theory of The necessity of the rational, fair with good faith governance in limiting freedom of contracts in international commercial contracts" with the other international principles could complete international law and It supplements the provisions of the Principles, and it may take precedence over other provisions of these Principles when a strict adherence to them would lead to a manifestly unjust result. The result of the theory is that the principle of good faith and fair dealing must be respectful for governments in their sovereignty so governments mustn’t inter the contract for their own personal political goals and purposes or by irrationally legislation such as article 968 of Iranian civil code or article 477 of Iranian criminal procedures code harm merchants.
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