No abstract

The jurisprudential and judicial legal trend tends to apply the principle of good faith at the pre-contracting phase as one of the most substantial principles governing this phase, since it is inconceivable that the parties are to negotiate in bad faith, and then must implement the contract in good faith, in accordance with the traditional legal rule that “fraud spoils everything it touches”. However, the Palestinian legislature has ignored enacting legal provisions obliging the parties to abide by the principle of good faith in the pre-contracting phase causing a legislative deficiency in the legislative remedies of the subject of good faith in the pre-contracting phase. This paper seeks to prove that replacing a provision that requires good faith in negotiations with the provisions of tort liability causes many legal problems. To prove this, the legal provisions should be analysed which would also include determining the definition of the principle of good faith, and the function of that principle in achieving contractual equilibrium and the legal basis for this principle at the stage of negotiation which should also be analysed. Moreover, a comparative analytical approach with the French civil code is used to illustrate the Palestinian legislative deficiencies and the need to legislate a legal article which obligates the negotiating parties to behave in good faith, as this has become an unavoidable reality that should be dealt with to contribute to the stability of civil and commercial transactions. As such, the legal article should also specify the compensation to be claimed.

The first cyberlaws1 of Malaysia were passed in 1997 and Malaysia has been hailed as one of the first ASEAN countries to have done so. Since then, there have been various amendments to current legislation to adapt to Internet situations, and new cyberlaws have been passed, such as the Electronic Commerce Act 2006 (Act 658)2 and the Personal Data Protection Act 2010 (Act 709). This paper will give an overview of these laws relating to the Internet.

The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.

The UNIDROIT Principles of International Commercial Contracts (PICC) have a significant effect on the legal impact of changed circumstances. Many recent court and arbitral decisions have relied on the PICC when ruling on issues relating to hardship events, as a result of the occurrence of events fundamentally altering the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, which is widely known in international trade as hardship clauses. This was not the case only for court and arbitral decisions, as many directives and principles did, as well, such as Article 6:111 of the Principles of European Contract Law, Article 89 of the Common European Sales Law, and Article 1195 of the Amended French Civil Code of 2016. In this context, this article analyses the role of hardship provisions in light of the PICC in retaining economic equilibrium compared with the contingency-unforeseen circumstances theory in the Palestinian Draft Civil Code Draft (PDCC) in order to reach a place of harmony. On the one hand, the research concluded that the hardship theory as contained in the UNIDROIT Principles of 2016 suits the current Palestinian reality, however, the criterion for determining the fundamental alteration of the contractual equilibrium is tainted in ambiguity. On the other hand, the research shows failure of the contingency-unforeseen circumstances theory in the PDCC in addressing changed circumstances and onerous performance, which necessitates an urgent intervention of the Palestinian legislature to amend the text of Article 151. Accordingly, in light of the current wording of Article 151 of the PDCC, the study shows that Palestinian contracting parties cannot refer to the Unified Principles of International Trade Contracts 2016 to fill the legislative vacuum in cases of changed circumstances, because it is not possible to agree on anything contrary to the provisions of the contingency-unforeseen circumstances theory.