A Comparative Study of Dealing with Unfair (Contract) Terms in the Iranian & Iraqi Laws

The unfair term as a disturbing factor of contractual balance is one of the most controversial issues on contract laws or contractual terms. A party somehow abuses a superior economic relying on these terms. On this situation, one question is raised: Is there any solution to deal with these terms considering the principle of freedom of contract in contract law? Results of this study which has been performed based on the descriptive and analytical research method shows that in both (Iranian and Iraqi) legal systems, there is no general rule which can provide full support clearly to the weak side although using general rules such as (the theory of) defects of will and etc. as well as judges' use of interpretative rules of contracts also some rules such as public order may give a few support for only some cases. So legislative interference in offering an appropriate solution is inevitably necessary. In order to develop the appropriate strategy, the legislator should consider the following points: Generality of laws which should cover all related cases to unfair contract terms. Since all aspects of contracts and terms should be measured in order to recognize their unfairness, the judge's role and authority should be emphasized by the proposed rules. Furthermore, a proper solution should be offered to support the weak side to preserve the contract as much as possible also, it can lead to the cancellation or modification of unfair (contract) terms.