Dr. Abdulmajeed khalaf Alenezi
Associate Professor of Civil Law
Saad Al-Abdullah Academy for Security Sciences,
State of Kuwait

Abstract:

The objectives of this research are to evaluate the adoption of the idea of the contract of compliance in the civil law, and the authority that the law gives to the judge to modify the content of the contract to restore balance to the contractual relationship in which one of its parties prepared and drafted the contract solely in a way that the other contracting party can only accept or reject without discussing its terms, and the effect of the limitations that surrounded that idea in restricting the ability of the judge and preventing him from achieving the goals of the legislation in protecting the weak party, despite the increasing spread of contract models offered by large and medium commercial and economic entities that control the market for goods and services, in addition to the consequent adoption of more effective means in protecting the weak party in consumer contracts, and suggesting what can be adopted from the ideas by comparative law in order to facilitate the judge’s task in addressing the arbitrary conditions included in compliance contracts.
To achieve this end, the descriptive-analytical approach was adopted by analysing the legal texts and reviewing the legal provisions related to the subject of the study, and by comparing that with what some other countries have implemented in order to do justice to the weak party in the contractual relationship. The research has been divided into two sections, the first of which deals with the nature of the contract of compliance and arbitrary conditions, while the second deals with recent trends in consumer protection and addressing abusive conditions.
The research concluded with several results, the most important of which is that the definition of the contract of compliance by focusing on the method in which the contract had been concluded is most compatible with what was stated in Articles (80, 81 and 82) of the Kuwaiti Civil Code, and that adopting the criterion of breaching the contractual balance will contribute greatly to facilitating the task of the judge when confronting arbitrary conditions, that the Kuwaiti judiciary has adopted the traditional approach in defining the contract of submission, and that there are flaws in the formulation of Article (81) of the Civil Code. The research recommended the necessity of amending the wording of this Article, as well as amending Articles (6) and (11) of the Kuwaiti Consumer Protection Law.

Keywords: contract of compliance, judge’s authority, arbitrary terms, contract modification, consumer protection.

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