yousef molaei; ebrahim shoarian
Volume 15, Issue 42 , January 2015, , Pages 173-190
Abstract
Despite of the fact that the principle of freedom of contract has made it possible forthe parties to reach the agreement with free will and full authority, the experience hasshown that the contractual balance between the parties has been impaired by thepassage of time and scientific and industrial advancementso ...
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Despite of the fact that the principle of freedom of contract has made it possible forthe parties to reach the agreement with free will and full authority, the experience hasshown that the contractual balance between the parties has been impaired by thepassage of time and scientific and industrial advancementso as to it has brought theissue of weak and strong party in many contracts andconsequentlyhas made it difficultfor law-makers and jurists to establish the balance between the parties.Since long before, due to the various reasons, the protection of the weaker party ofthe contracthascaused the distance of some parts of private relations from the ambitof private law; protecting the employee in the labor contract is a good example hereto be mentioned. Nevertheless, it seems that there is no end point for such amovement and the rules of human rights are attempting to take further stepincontrolling the rules of private law. Human rights that has already shown itseffectiveness in constitutional and criminal law, is striving to inter into the scope ofprivate law including contract law through the expansion of its basic rulesin orderto show that it is not merely a monitor of the parties’ contract. On the contrary, itwill protect the basic rules of human rights wherever it is required.Nowadays, human right is not considered as a mere protector of individuals againstgovernments. Conversely, the impacts of human rights on contract law have beenacknowledged both by case law and scholars, specifically in the European legalsystem. Our legal system is not familiar with this phenomenon but the presentessayattempts only to broach the issue and provide the basis for further developmentof the concept in our legal system.
