دور القاضَـي في معالجة اختلال التوازن في إطار نظرية الظروف الطـارئة

Abstract

The terms of the contract are the parties' law, and its parties must faithfully implement it. Each contracting party is bound by all the obligations arising from the contract, and if this rule binds the parties, it also obliges the judge, as he must respect the contracting parties’ agreement and abide by its application without change, but the contract can be modified through the judicial authority. This is in certain case, ، the most important of which is the exceptional cases that occur between the stage of concluding the contract and its implementation, and by that we mean "emergency circumstances. This study aims to define the limits of the judge's authority to reinstate the nodal balance between the contract's two parties in emergency situations. It also addresses the need to understand the legislator's position in Iraq with regard to the judge's power to reinstate the nodal balance between the contract's two parties in emergency situations. After conducting this investigation, we concluded that nodal balance means the state of parity and equality between the two parties to the contract in the obligations it places on each of them, or gives them rights or empowers them in all stages of organizing the contract, and the theory of emergency circumstances is an exception to the rule of Sharia. The contracting parties and on the principle of dominion of will, and that the Iraqi legislator has limited the judge’s authority to reduce the burdensome obligations to a reasonable extent, and there was no justification for it if he had expanded his discretionary power to include the increase in the corresponding obligations or to stop the implementation of the contract until the effect of the exceptional circumstance ceased in order to achieve justice between the two parties. And we suggested at the end of this research that the text of Article 146/2 of the Iraqi law is considered a public order, and every agreement that violates the provisions of this text must be considered null and void. But we noticed that the aforementioned text stipulated that for the application of the theory that the emergency incident be general, and this is critical, as exceptional incidents occur in practical life, but they are not general, as they are limited to the debtor only and cause him severe financial fatigue, and in such a case this contractor cannot demand the application of the theory and benefiting from its provision, so we suggested reconsidering this condition and excluding it in order to achieve the just goals and objectives that the theory seeks. As we have seen, refusing annulment means keeping the contract as it is, despite the economic imbalance that occurred in it. Therefore, we suggested reconsidering the aforementioned text so that it could be rescinded if necessary and at the discretion of the trial court. Finally, we suggested in light of the current challenges that the world is experiencing from the (Corona epidemic) crisis after the Corona pandemic (Covid-19), that we consider it an “emergency circumstance”, which allows the civil judge the authority to remedy the imbalance of the contract and restore balance to it.