The Discretionary Power Vested in the Judge in Evading the Principle of Pacta Sunt Servanda: A case study of pandemics in Jordanian and Egyptian law

Authors

Chahata Cholkami, Department of Private Law, Faculty of Law, Zarqa University, Zarqa, JordanFollow
Shahad Kamleh, Department of Private Law, Faculty of Law, Zarqa University, Zarqa, JordanFollow

Abstract

Most legislations and laws define a contract as an agreement between parties that has the principle of acceptance and acknowledgment to fulfill its effect on the subject matter. However, there is a conflict in regard to the perspectives of the contractual binding force: (1) A personal one, represented by the principle of autonomy of contractual will (2) A social one that leans towards the binding force of the contract, where the will has no force. In such a case, the will has no binding force. According to the autonomy of will principle, the parties free will serves as the basis for the contracts legal stipulations. The parties intentions, not the law, give the contract its binding power. The only function of the law is to recognize the legal impact that the contract creates and to ensure that it is upheld. Every duty resulting from agreement and decision- making has to end with justice. This principle is based on two main concepts: The freedom of contract, where all responsibilities and liabilities stem from free will, and secondly, the necessity of respecting the will of the contracting parties. Ideally speaking, whatever the parties have agreed upon becomes legally binding and must be respected according to the law. It cannot be modified or annulled. When established, a contractual relationship achieves economic equilibrium in the contract. The principle of the binding force of the contract necessitates the precise execution of the contract in accordance with its provisions. It cannot be modified or invalidated except by mutual agreement between the parties. The problem of the study lies in how to deal with circumstances that may arise due to an unforeseen event and how to strike a balance between the parties to the contract when resorting to the theory of force majeure or the doctrine of irresistible force. It also involves the authority of the judge in the legal qualification of a claim affected by an unexpected event that leads to a disruption in contractual equilibrium. The objective of the study is to shed light on this issue in an attempt to state that every contractual obligation must not be measured against another in order to achieve justice. The study also aims to determine the powers vested in judges in dealing with pandemics and their impact on contractual relationships in light of the theories of force majeure and irresistible force. Through this study, it becomes evident that judges have discretionary power granted by the legislator, which can be invoked to depart from the rule governing contracts (Pacta Sunt Servanda). This rule is considered one of the exceptions allowed by the law, enabling judges to invalidate or modify contracts in lawsuits affected by exceptional and unforeseen events.

Recommended Citation

Cholkami, Chahata and Kamleh, Shahad (2023) "The Discretionary Power Vested in the Judge in Evading the Principle of Pacta Sunt Servanda: A case study of pandemics in Jordanian and Egyptian law," Information Sciences Letters: Vol. 12 : Iss. 7 , PP -.
Available at: https://digitalcommons.aaru.edu.jo/isl/vol12/iss7/37