THE JUDGE’S POWER TO AMEND THE PENAL CLAUSE AND ITS GUARANTEES IN IRAQI AND COMPARATIVE LEGISLATION

Abstract

Through this research, we discussed the impact of the economic imbalance when implementing the contract as a result of the penalty clause, when the contract entered into force and especially when it was implemented. Maintaining the contractual balance is the goal of the contractual process and the goal of legislation since it existed to achieve justice and equality between the parties to the contractual relationship, and where the most important results were represented by making... The Iraqi legislator and comparative legislation are provisions granting the judge the authority to amend the amount of the penal condition in order to be proportional to the damage actually caused by public order. Thus, it is not permissible to agree to exclude it or determine its scope. Among the most important recommendations was the need for the Iraqi legislator to regulate contracts of adhesion that include arbitrary conditions in light of economic developments. Technology and the resulting misuse of economic power by the powerful party in the contract are modern and sufficient to protect the submissive party so that it does not fall victim to abuse or any exploitation when concluding contracts in its various forms.